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lAP.  1.  :■:-  CRIMINAL^  I^W^x*  J  »oc  ,•'•   Pag*       "v 

'  4o  FOtStlM   COMVIGTION  OS  AGq(!ntTAI»*,., «,»,.«  .         * 

•  5 «  THE  CRiMBVAla  ACT  •f.oo.^s*^**  •  «  •  W  ♦  #  *  *  ^  «  < .-        " 
'          C «  TH5  GRIM iHAL  IirPKNT  »«  .  •  **  >  .  »  *  *  ♦  *  ^ » o  »  .  »  o  c        * 

•  7.  T  AS  APFfiGTED  BY  CIRCIJMSTMCES*.  .CO        " 

'  J  JlISTilFxCATXON  •  •  »  *  •  /i  *  »  »  «  •  »  e  >  •  4  •  &  4  (i  »  «  i^e  ^^-v* 

XQ4  PAIvP^Ji»S  IN  CRijitB<»«  4  « •  •  »  •  «  « « a  •  o «f> <b>4>9*.v « « 

11 .  JURl  SBt CTION  OYEn  0FP£NCj3S,  «  •  ,  ♦ ,  * » 

'  ■        ,  ,   ,  .  '.        '      \   -        _.    .' 

15.  oBtAXNiws  pROPBRTy  UNDBR  ?ALaa  pii^aSKcsa^    * 


145, 

/ 

52, 

81. 
152, 


bl 


e^^ 


I  •  /  1 


CRIMINAL     L  A  W   —   P   R  0   F  E  .S   S   0   R     B   i)  A  L  B    • 

18    9   6-7, 

Eibliogi'aphyo 

English  authorities  before   19th  Century: 
Hall   -  Pleate/the    crovm,, 
Hawkins   -   "  "  ''' 

East   -  »  a  » 

After  i9th'  CeVitury 
I3lac]< stone    -  Tk,   4-0 

Russell   -   CroiiieB   and  Llisdenieanors, 

Anerican  authorities: 
Bishop   -•   Criiiiinal   Lav/o 

*  Criuiinal   Proeeed-ure « 

*  S  tat  lit  ory   C-rhne  s « 
"  IndictLientSo  • 

Wharton   -  Criminal   Lav,r  c 

Stephen  -  Digest    of   Criminal   LaVo 

May    -  Criminal   Lav;   -  Student's    edition,    1393, 


IIITRODUCTION, 
The  method  advisable    tri  the    study   of  cases    in  criminal 
law  liiay  be   divided   into    seven  heads. 

1,  Point    in   issue » 

2,  Argument e« 

3-,   Decision  --  how-  decided  and  on  what  grounds, 

4»   '(Kiy  3  0  decided, 

5,   Own  opinion  of  decision  and  reasoning. 

6',   Defense  of  that  opinion, 

7,   Construction  of  the  ge-neral  rule  in  crL.dnal  lav;  on  which 

the  case  in  question  restSo 

In  genei'al  -  it  is  impossible  to  distinctly  separate  this 
branch  of  the  law  from  any  other  department  for  CL.  Law  pre- 
sents more  del-icate  points  and  minute  distinctions  tharx  the 
other  branchCFio 

Treatises  -  Of  the  earliest  treatises  on  crimes  and  ,GL', 
Law,  kno'wn  as  Fleas  of  the  Crown,  three  are  excellent :-  Hall, 
Hawkins,  and  .Cast  o  Hawkins  is  by  far  the  best. 


H\ 


aV^> 


T 

3  SGSSur 


Criniinal  Proceedure, 

The  riatural  way  to  deal  with  crimes  is  by  the  State,  be- 
cause they  are  supposed  to  be  injuries  to  the  Public  -  more  ■ 
than  to  individuals.   In -very  early  times  in  England  there 
were  no  public  officers  for  the  prosecution  of  criminals,, 
hence  crimes  were  puriished  as  private  wrongs  by  suits  batween 
the  parties  0  ' 

The  earliest  fonn  of  crimirial  prosecution  wag  by  *Appeall 
Either  the  injured  person  or  some  relative  came  into  court  and 
"Appealed"  the  wrong-doer  -  that  is,  called  upon  him  to  defend, 
himself  0  In  the  early  days  this  v/as  the  only  torra.  of  securing 
the  puTiishment  of  crimes.  Later  there  grew  up  a  system  of 
pro-tection  by  mutual  guarenty  (Frank  Pledge  )  or  by  hue  and 
cry. 

This  system  of  private  protection  and  private  prosecuticai 
Vifas  in  vogue  till  recent  times  j'  The  "Appeal"  was  not  formerly 
abolished  in  England  until  1818.   Alongside  of  it-,  however, 
grew  up  the  modern  system  of  criminal  prosecutiona 

The  "Appeal"  was  quit-e  a  flourishing  form  uritil  about  the 
middle  of  the  17th  century.   Arid  in  some  places  it  was  the 
favorite  system  up  to  that  time,  because  the  whole  prosecuticai 
was  in  the  hands  of  the  injured  party;  and  the  crown  coul<i  not 
stop  the  proceedings  nor  pardon  the  criminal  if  convic-ted. 
"Appeals"  for  mui-der  were  quite  common  till  after  1G50»   "Ap- 
peals" for  larceny  also  had  some  advantages  because  the  party 
robbed  could  get  his  property  b^ckj  where-as  if  the  State  took 
the  issus  he  coixld  not  always  -get  it  back. 

The  Machinery  of  "Appeal" . 

The  injured  party  first  raised  the  "hue  and  cry"  and 
caught  the  criminal  if  possible.   He  then  "Appealed  hini  of  the 
crime  and  brought  him  into  court.   The  Appelee-  then  had  to  an- 
swer tlie  "Appeal"  and  the  issue  was  then  tried,,   The  comnon 
way  of  trying  the  issue  was  by  "Wager  of  Battle",  but  the  ac- 
cused had  the  option  as  to  whether  he  would  be  tried  by  jury 
or  battle.   If  the  issue  was  fourid  for  the  appelant  the  de- 
fendant was  hanged;  if  othein^rise  the  appelant  was  fined  for 
false  "Appeal";  this  was  one  of  the  great  reasons  for  abolish- 
ing "Appeal" , 

Prosecution  by  the  King.      Alongside  of  the  process  of 
"Appeal"  there  grew  up  a  form  of  prosecution  by  suit  of  the 
King  which  was  the  result  of  the  appearance  in  court  at  certai 
times  of  four  men  from  each  township,  who  informed  the  King 
as  to  what  had  been  done  in  their  tpwnship  -  that  is,  a  sort 
of  Grand  Jury. 

The  ch^arge  against  the  prisoner  miglit  be  framed  by  this  4 
Grand  Jury  upon  their  own  motion,  but  that  was  not  common;  for 
it  was  usually  done  by  some  party  who  was  injured  or  inter- 
ested.  In  this  country  the  moving  party  is  always  a  public  of 
•ficial,  appointed  for  that  purpose,  called  prosecuting  attor- 
ney, state's  attorriey,  etc. 

2 


tr.2 


Lately  there  has  been  in  Erigland  a  tendency  to  the  sacie  thing 
"and  great  crimes  are  often  prosecuted,  for  instance,  at  the 
suit  of  the  treasury,  but  the  prosecuting  ottorney  is  not  a 
■public  official,  but  a  private  attorney  hired  by  the  govern- 
ment for  that  particular  case.  However,  the  iridictinent  is 
always  i-ior..irj.aliy  in  the  name  of  the  King  or  State,  and  this 
forin  of  proceeding  by  indictr/ient  superceeded  "Appea-l''  and  is 
now  the  only  form  of  procee<iure  in  the  hi'ger  courts o 
See  Stephen  -  TTistory  of  CL«  Lav^   59  -  74, 

The  Indictmejnt  <,    Even   now  the  machinery  of  the  goverri- 
ment  is  almost  always  set  in  motion  by  an  individual  who  makes 
a  "Complaint"  either  to  an  infei'ior  court  or  directly  to  the 
disti'ict  attorney o   Smaller  crimes  are  generally  dealt  with  in 
the  lower  courts  directly  wothout  an  indictment  -  as  for  in- 
stance, in  111,,   by  Justices  of  the  Peace,    If  a  complaint' 
is  made  to  a  J,  of  P,  he  formally  writes  dov;n  the  partioulars. 
This  is  the  basi  of  the  prosecution.  The  next  step  is  to  ar- 
rest the  person  of  the  accused,  which  is  done  by  a  warrant 
directed  to  a  peace  officer,  ordering  the  arrest  of  the  deferr- 
dant  and  the  bringing  him  into  court.   These  tow  things,  how-- 
ever,  may  be  turned  aroiind,  and  the  arrest  may  come  firat  as 
is  the  case  when  he  is  caugiit  in  the  act;  but  before  the  pri- 
soner is  brought  into  court,  there  must  be  both  an  arrest  and 
a  complaint-.   Then  the  defendant  must  plead  to  the  charge 
against  him.   If  he  pleads  "Hot  guilty",  there  is  an  issue 
raised  as  in  civil  cases;  and  there  may  be  everi  an  issue-  of 
law  raised,  but  this  is  not  so  common  as  in  private  suit. 
Next,  the  accused  having  raised  the  issue,  is  tried  and  is  con 
victed,  sentenced.  By  the  constitution  of  most  states  every 
mari  has  the  right  to  a  trie.l  by  jury,  but  usually  this  ie  not 
allowed  in  the  petty  courts;  hov/ever,  is  he  is  not  allov/ed  a 
jury  in  the  lower  courts  he  alv/ays  has  the  riglit  of  appeal  to 
a  higher  court  where  he  is  given  a  jury  trial.   The  complaint 
in  these  minor  courts  takes  the  place  of  the  indictment  and  no 
indictment  is  found;  ho;yeverj  the  same  things  are  stated  in 
the  complaint  which  would  be  stated  in  the  indictment. 

Trial  ijj-ider  Indicti..ent ,    We  will  suppose  a  man  charged 
with  murder.   A  peace  officei'  or  an  individual  first  goes  to 
a  magistrate  and  laakes  a  cariplaint.   An  order  of  arrest  is 
issued  arid  the  accused  is  brougl-.t  into  court  and  the  complaint 
read  to  hin'i  as  before,   Bu.t  he  is   not  tried  on  the  complaint 
as  the  law  generally  says  that  serious  crimes  must  bo  indicted 
by  a  grand  jury;  so  the  accused  makes  no  plea  here  as  this  is 
not  the  fonnal  charge  but  only  a  preliminary  examination  to 
see  if  he  shall  be  held.   So  the  inferior  court  makes  only  a 
rougli  inquiry  as  to  his  probable  guilt,  and  generally  he  makes 
no  defense.   If  the  Justice  thiriks  the  evidence  is  sufficients^ 
he  binds  him  over  to  the  grand  jury,  which  process  is  called 

3 


a  "Contuotmerit"  .   This  cou^niUuunl   may  be  eitliGi'  i-o  bail  oi-   'to 
jail,  bub  ^ome  hi^h  criiiics  are  not  bailable  as  e«  £,,  muder. 

The  Grand  Jui^y,    The  Grand  Jux'y  cuniainst  froia  tv;elve 
to  twenty  throe-  iVien,  drav;n  froni  the  county  where  the  crime  i3 
said  to  have  tahen  place  arid  it  as^eu.blea  at  court  vjhori   called 
upon.   The  jud^e  then  instx'uct.3  thei..  as  to  their  duty  and  they 
go  irito  secr'jt,  session.   The  char;^e  in  she  meant iiije  has  been 
f oiiuulaoed,  by  the  district  attorney  in  the  U.  3.  or  by  arr 
attorney  rer.ained  by  the  prosecutinf  individ^^al  in  Encland, 
This  prosecuting  attorney  brinr,3  the  foniial  char£,e  to  the  g 
Grand  jury  and  produces  his  v/itriessess ,  and  the  Grand  Jury 
decides  as  to  v/hether  a  PriiJia  facie  is  made.   This  forusal 
charge  £,iven  to  the  Jury  is  kiiov/n  as  the  "Bill",   If  they  fird 
against  uhe  accused  the  forei^^an  indorse'?  on  the  baci?  of  the 
bill  -  a  true  bill.   Ig  a  prima  facie  case  is  not  made  out 
they  indorse  -  not  a  true  bill,  '^rrien   the  Grand  Jury  is 
througli  with  all  tiie  bills  presented  it  returns  to  the  court 
arid  the  foreman  hands  the  bill  so  indorsed  to  th,.e  clerk  of  the 
court;  those  indorsed  as  x,)ir\xe   bills  are  henceforth  knov/n  as' 
indictments,  which  correspond  to  declarations  in  civil  suits© 

It  aometiiiies  happens  that  an  indictment  is  fourid  v/ithout 
either  a  complaint  or  an  arrest.   In  that  case  a  warrant  is 
signed  by  the  court  directed  to  the  sheriff  to  bring  in  the 
accused  person.   This  is  the  process  if  the  individual  com- 
plainii-ig  goes  to  the  disti'ict  attorj-iey  instead  of  to  t.ce  in- 
foi'ior  magistrate.   The  defendant  is  nov;  called  "upon  to  plead 
to  the  iridicti/ient ,  and  he  must  appear  personally  when  the  in- 
dictmcrit  is  read  to  hhii.   He  may  raise  ari  issue  of  law  if  he  ■ 
wishes,  but  usually  he  raises  the  issue  of  fact.   ]-Te  may  plead 
1,   Guilty  >-  and  theri  there-  is  no  is3i..e  and  nothing  to  tryo 
Sentence  is  then  passes.   2,   hot  guilty  -  i.  e,   he  de-nies 
the  ti'utri,  of  the  indictment  and  raises  an  issue  of  facto 
3,   He  may  say  nothing  and  in  this  case  the  plae  of  "not 
guilty"  is-  entered  for  hixa. 

At  the  earliest  co;:imon  lav/  the  regular  method 
of  trying  aciiusations  was  by  battle  or  ordeal.   In  trial  by 
battle  the  parties  were  broug;-:t  into  the  lists  armed  in  a  pe- 
culiar way  -  lo  £,   with  a  cord  aroud  the  arm  and  a  sharpened 
stick  in  the  hand,   this  v/as  now  a  fatal-fight  but  a  stx-uggle 
to  see  which  would  overpower  the  other  before  svinset  „   If  the 
defendent  won  he  was  aquitted  and  the  plaintiff  v/as  hanged. 
If  the  plaintiff  won  the  defendant  v;as  hanged.   This,  as  the 
ordeal  also  was  considered  as  an  appeal  to  Heaven;  the  ques- 
tion in  the  ordeal  being  whether  his  wound,  inflicted  by  a  ■ 
red-hot  iron,  would  heal  in  a  healthy  uiarmer;  this  was  in  the 
ordeal  by  fire  and  in  the  ordeal  by  T;ater,  whether  the  acc^«8ed 
would  sirik  or  float. 

The  Roman  Church  at  last  forbad  any  person  in  orders  fron 
being  present  or  having  anything  to  do  with  ordeals,  and  at 
that  tiiue  the  judges  and  riearly  all  educated  men  were  in  or- 
ders;  so  this  prohibition  by  the  Church  was  perfectly  suc- 

4 


cessful  in  abolishin^':,  ordeals  in  Erigland,   3o  the  question  < 
ai'ose  how  "bo  try  a  criminal. 

It  was  finally  settled  that  a  i.-^an  was  to  be  co::ipelled  to 
ask  to  be  tried  by  a  petit  jury,  and  this  election  to  be  trifd 
b;,  a-  jury  came  to  be  considered  as  part  of  the  pleading  it" 
aelf »   So  if  a  laan  plead  at  all  he  v.'aB  considered  as  asking 
for  a  trial  by  jury  and  thus  if  a  jiian  refused  to  plead  there 
v/as  a  difficulty  because  he  had  the  leral  rig,ht  to  be  tried 
by  an  ordeal.   Gonsequeritly  the  courts  ordered  that  a  ivan  ':fh.o 
stood  iuute  should  be  induced  to  plead,  which  inducement  con- 
sisted of  j..i;ttin£  hini  on  his  back  with  a  weight  on  his  chest 
and  in  feeding  hiin  with  stale  bread  arid  stagnant  water  on  al- 
ternate daySo 

nevertheless,  there  were  some  cases  in  which  the  prisoner 
persisted  in  dyiiig  ija-ider  this  treatment  because  if  he  did  not 
plead  his  property  v;ent  to  his  family,  wl^ile  if  he  was  tried 
and  convicted  iiis  goods  were  forfeited  to  the  Xing.   The 
first  modification  introduced  was  that  if  the  defendant  re- 
fused to  plead  a  jury  should  be  impanelled  to  see  if  he  was 
mute  by  visitation  of  Crod.   or  obstina&ely  refused  to  plead, 
In  the  first  case  the  court  entered  a  plea  of  not  guilty  for 
him;  but  it  was  not  till  12  Geo.  5rd.  that  where  a  man  refused 
to  plead  a  plea  of  guilty  \7a3  entered  for  hin\.   This  was  su- 
perceeded  again  later  and  a  plea  of  not  guilty  entered  for 
him^  which  custom  is  followed  everywhere  in  this  country » 

In  IT,  K.  and  in  some  other  states  one  v;ho  pleads  guilty 
of  murder  is  not  at  once  sentenced,  but  a  jury  is  Liipanelled 
to  see  if  he  is  guilty  of  murder  in  the  first  degree,  for  in 
some  states  a  defendarit  cariiiot  plead  guilty  of  x/turder  in  the 
first  degree^   But  the  function  of  the  jury  in  ti\is  case  is 
not  that  of  a  trial  jury,  but  that  of  an  inquiry;  it  is  the 
sairie  sort  of  thing  as  when  a  man  admits  that  he  has  committed 
a  toi't  by  failing  to  reply  to  the  declaration  and  the  court 
must  ia>i:anell  a  jury  of  inquiry  bo  ascertain  the  amount  of 
daiiiages  o 

V/e  virill  suppose  now,  however,  that  the  defendarit  has 
pleaded  not  guilty.  The-  next  step  is  to  secure  a  jury,  which 
is  called  the  petit  jury.  This  jury  is  collected  from  the 
county  in  the  same  way  as  a  grand  jury,   A  number  of  men  are 
suminoried  into  court  from  v/hich  12  men  must  be  selectedo   the 
name  of  each  are  read  by  the  court  arid  as  each  one  is  caijLed 
eithei*  th-e  goverriruent  or  the  defense  has  the  rigl^t  to  chal- 
lenge him.   In  nearly  all  states  each  side  can  challenge  a 
number  peremptorily  without  cause,  but  after  'that  number  is 
exiiauuted  they  only  challenge  with  good  cause. 

The  jury  is  next  sworn,  the  indictment  read  to  them  and 
the  trial  heid»   If  the  verdict  is  g^ailty  the  court  proceeds 
to  sentence  the  prisoner.  At  this  point  it  is  the  habit  of 
the  court  to  again  hear  a  certain  amount  of  evidence  as  to  the- 

5 


liatui'.e  oi''  tLe    ci'i:.:e,  the  charactei'  of  the  def  eriviant ,  etco,  be-' 
foi'  paBsing  on  his  punishivierit ,   Howevei",  the  aoioiirit  of  pun-  •• 
isriniGnt  ia  aliaost  always  rer,ulated.  in  U,  "^ ,  by  certain  limits* 
the  Def t 0  is  always  allowed  an  opportunity  to  state  reasons 
why  sentence  should  not  be  pronounced  v^.pon  him,  and  in  capi- 
tal offences  he  cannot  even  waive  his  privilege  of  bein^,  pre- 
sent arni  having  this  question  asljed  hiiri. 

In  early  tinios  this  v/as  the  point  for  alleging  benefit 
of  clergy,  \7hich  v/as  the  right  to  be  punished  by  the  eccles- 
iastical anrio   This  rigiit  however,  was  luodified  in  iviany  ways 
before  it  finally  disappeared.   Pirst ,  those  claiiriing  benefit 
of  clergy  were  branded  so  that  the  church  could  not  secure 
this  right  for  the  sanie  person  the  second  tin'ie,  except  for 
those  actually  ministers.   Second  -  It  caxrie  to  be  considered 
that  anyone  who  could  read  was  a  clergyman  and  in  that  case 
they  \7ere  allowed  to  be  bi'anded;  the  church  never  directly  inr- 
flicted  capital  punish^ment.   Third  -  Finally  in  the  reign  of  ■ 
Kenry  Sth  all  serious  crimes  were  excepted  froru  the  benefit'  of 
clergy  such  as  rr;urder,  higtiW-ay  robbery,  buglary,  areon,  etco 
where  death  v/a  3  the  sentence.   Later  the  entire  custom  was 
abolished;  the  benefit  of  clergy  in  the  U,  S,  existed  to  some 
extent  till  the  revolution. 

The  Presence  of  the  Accused  at  the  Trial,   The  deft, 
miTSt  be  present  at  his  a^ri'aigrixnent  except  in  some  crimes  of 
little  importance.  He  v/as  also  entitled  to  be  present  at  ev- 
ery stage  of  the  trial  and  no  trial  could  take  place  v/ithout 
his  preaence,  except  with  his  consent,  oiitside  of  some  very 
small  misdemeanors.   If  the  offence  is  a  capital  one  the  de- 
fendant carinot  waive  his  right  to  be  present  at  all  stages,  • 
but  in  others  he  may  either  waive  it  or  forfeit  it  by  his  own 
misconduct.  However,  the  hearing  on  points  of  law  after  the 
verdict  is  not  a  part  of  the  trial  arid  so  his  attorney  may 
then  represent  him. 

If  the  indictment  does  not  state  facts  enough  the  deft 
caji  demur,   2ut  if  he  does  not  demur  and  the  verdict  is  found 
against  him  he  can  yet  move  ari  arrest  of  judgement  on  the 
ground  thao  the  facts  stated  in  the  indictment  do  not  con- 
stitute a.  crime.   This  motion  has  the  sane  effect  as  a  demur- 
rer, except  that  it  is  made  after  the  facts  stated  have  been  ■ 
found  ti'ue  , 

Felonies  v  Misdemeanors,  The  original  distinction  be- 
tween felonies  and  misdemeanors  v/as  that  the  former  included 
those  punishable  by  death,  the  latter  all  others;  but  v/ith 
the  abolition  of  the  death  penalty  for  most  offences  this  dis- 
tinction fell  into  disuse.  Now  felonies  are  considered  ae 
those  offences  which  are  punishable  by  imprisoruvient  in  the 
states  prison  J  misdemeanors  as  all-  others*   So  nearly  all  uri- 
classified  crimes  are  misdemeanors, 

6 


CHAPT£"R      ONE.  ' 
Sou.i-ces   of  Criiiiirial  Law. 

COIvlIviOilV^iCALTH   v  KIIOWLTOII,      p.    1.      Indictment   at   the   court 
of   CoMiion  Sessions    of   the   Peace   for  daniraing  up   a   stream  so 
that   fish   could  not   pass.      Defendant   v/ar.    convicted  and   sen- 
tenced  in  the    court    of   Corxiaon  Pleas,    successor  to   the    Ses- 
sioriSo     Motion  for   arrest    of   judGeaent   because    by   law   tij.Q  -said 
indictinent   did  not   lie   at   the   COTmion   Ses'?ions   and  the    Common 
Pleas  as    its    successor  had  no   jurisdiction   over   the    offence, 
FfiliD,    the    Court    of  Sessions   by   the    statvite    of   1732  was   empow'- 
ered  to  hear  matters   relating   to   the    conservation  of  the 
peace,    and   such   offences    cornizable   by   them  at    common  law   or 
by   the   acts    of   the   ie£,islature .      2   ~   the   Common  Lav/   of  I.iass. 
is   the   Coi.Taon  La"./   of  England  as  amended  and  expanded  by   sta- 
tutes up  to   the    time  of   the   emiiiigration,    arid   such   statutes   as 
\:ere   applicable   up  to  the   Revolution.      3   -  The   Sessions   at 
the   time    of  the    en-jTiigration,    in  £n£.larid,   had   jurisdiction   ■: 
over  all   trespasses  which  were   against    the    Lav/.        4)  This    of- 
fence   is  not    one   at    common  Lair/   but   a  new   one    creaied  by   sta- 
tute,   arid  the   Sessions   before    1804,    or   the   Couimon  Pleas    since, 
?iOt  having  jurisdiction  by   Common  Law   nor  expressly  by   statute 
no    crLi.e    is    conimitted   in   this    court. 

vr.xat  ds    COifimon  Law    in  the   U,   S.?     1   -  The    old  English 
Comi.ion  Lav/„      2   -  The   statute   lav/   in  England  before   the   emmi- 
gi'ation,      3   -  Acts   of   Parliament   between   the    settlement   and 
the   Revolution,    so   far  as    they   apply.      4   -  The  acts    of  the 
general   court   under  the    Charters   as   far  as   they  v/ere   allowed 
to   continue    in  force.      On  the    other  hand  the    Provincial  Leg- 
islatures were   legal  lav/-nia]<ing  bodies   and  their  decrees  did 
not    cease    to   have    force    at    the   Revolution;    so    their  acts   are 
pa   rt   of   our  Statute   Lav/.      See   1  Peters   Gil    -  as    to   laws    con- 
tiniting   in  force    in  spite    of   changes    in  the   form   of   govern-    • 
ment  ^ 

U.    S>   V  Hudson,    p.    3.      Derxxurrer   to   indictment   for  libel 
against    the    Pres.    of  U .  S,    and-  Congress.      This   case   was    sent 
from  tlie    Circuit   Cotzrt    of   Corm*    to   the   Supreme    Court    of  the 
U,   So  J    to  decide   v/}. ether   the   Cdrcuit   Court   had  a  Cor.¥.iOri  La-^ 
jurisdiction   in  cases    of   libel.'         HELD,    that    the   U.    S.    Gov- 
erriment    is    one    of   expx'ess   power »      2-30   the    courts    of  t;ie  Uo 
So    cari   orJLy  have   pov/ers  which   are   allowed  u/ider  the    Coristi- 
tution;    the   Supreme   Court    is   the    only   one  which  derives   its 
existence   fran  the   Const,,   the   Circuit   Courts  -deriving  both 
their   existence   and   jurisdiction  from  Congress,      Therefore 
Congress  must    first   aiake    an  act   a   criiue,    affix  a  punisr-znent , 
and   declare  VThat    court   has  jurisdiction  of   it   before    it    can  be 
punished. 

7 


The  Ccyai'ts  of  the  U,  S,  certainly  have  no  Coi^-riiori  Lav/ 
jurisJ-iction.   Th.is  does  not  mean  that  there  is  no   CooriiOn  Law 
in  the  Federal  Courts  but  sLaply  that  no  crime  can  be  punished 
v/hich'  is  not  provided  for  by  the  Const,  or  a  statute  of  Con- 
gress. 

COI.u.iOir:/£ALTK  V  MARSHALL,  p.  5.  Liotion  for  an  ar.-est  of 
judgement  on  a  convibtion  for  a  miBder.ieanor  for  disinterring 
a  dead  body  in  1S31,  because,  -  1  -  the  offence  charged  is 
St.. ted  to  have  been  coiiiiV.itted  ujid&r  the  statute  of  ISlo  v.'hich 
v/as  repealed  in  1830  v/ithout  any  saving  claiise.  2   -  "Ao   -of- 
fence knovm  by  the  laws  of  the  Conu.iOnwealth  is  described,  • 
IliILD,  thai  there  cg.n  be  no  conviction  10111633  the  act  be  con- 
tra I'y  to  la".7  when  couiiuitted,  and  there  can  be  no  judgement  un- 
less the  'lav;  in  in  force  both  at  the  time  of  indictment  arid  a£ 
judgement.   The  statute  of  1S15  shut  out  the  Common  Lav;,  and 
the  act  of  1830  repealed  re'^ea^led  the  statute  of  1315  virithout 
any  saving,  clause;  the  offence  being,  coiiiiViitted  bet^7ee;l  1315  ad 
1330  can  therefore  be  punished  neither  by  the  Conimon  Law,  the 
statute  of  1315,  or  of  1330.  When  the  Comr.ion  Lav;  or  a  stat-- 
ute  creating  an  offence  is  repealed,  or  expiree  before  judge- 
ment in  a  criminal  case,  judrement  cannot  be  entered  against  ■ 
the  prisoner,  ^Uiless  by  a  saving  clause  in  the  statute  ex- 
cepting periding  cases;  and  in  such  cases  if  the  statute  ex- 
pires after  judgement  and  befoi»e  execution  the  judgement  will 
be  reversed  or  execution  stayed. 

COLQaOIRVEALTH  v  CKURCrlILL,  p.  6.   Exceptions  to  instruc- 
tions upon  an  iridictmejit  for  the  sale  of  liquor  v;itho'at  a 
licence:  that  the  court  instructed  the  jury  that  sees,  2  and' 
3  of  C,  47  of  the  revised  Statutes  are  still  in  force  as  Lav;, 
HELD,  thai  it  is  a  ixiaxim  of  the  Common  Lav;  that  the  simple 
repeal  of  a  repealing  lav;,  not  substituting  other  provis-ions 
in  place  of  those  repealed,  revives  the  pre-existing  lav/'. 
This  maxiiii  of  the  Coaiinon  Law  v;as  in  force  v;hsn  the  Const,  of 
the  Ga'-'iionv/ealth  v;a3  adopted  and  v;as  adopted  with  the  rest  of 
the  Common  Law,  Therefore,  the  -statute  of  134-0,  repealing  the 
statute  of  1333,  did  revive  sees,  2  and  3  of  C,  47  and  those 
sees,  were-  iri  force  at  the  tii.-ie  of  the  offence  chai'ged  in  the 
indicti.ient  , 

This  principle  is  -one  v;hich  is  necessary  or  v;e  v;ould  of- 
ten be  left  without  lav;.   We  have  the  v;hole  law  to  start  v;ith; 
v;e  change  it;  and  •.;hen  we  tal^e  away  the  change  v/e  have  the 
law  as  before . 

9* 


CHAPTER      FIVE.  ' 
THE      CRB.1III'AL      ACT. 
Section  1,      Comple-ted  Acts. 

We  will  not    consider  the    ci'irriinal   intent  dn  this 
chapter  but  v;e  \tH'l   assiinie  the    intent   to  be   present.      The   ba- 
sis   of  a   crime    is    that    it  nust    injui'e    the   Public   and  be   agains 
public   policy,   and   the  -Criiuinal  Law   does  not   protect    the    in- 
dividual but   the   Public,     This    is   the   test    or  a   crime   and  the 
essence    of   it    is   not    that   an   injury    is   done    to  an   individual; 
noi'   is   a  wielded  act   the    essence    of'  a   crinie   because    by  no 
means  all  wicked  acts  are   crLviirjal. 

CROUTHER'S   GAS£»    p,    95,      A   constable   did  not  raake  hue  arjd 
cry-  for   a  biirg^lary   coffiinitted  at   niglit    on  notice   beinr;   given 
hin^i.     Exceptions   taken  because   a  hundred  could  not   be   charged 
\7ith   a  robbery   coxriTiiitted  at   niglit   as   the    citizens  were  not 
obliged  to   give-  attendance;    so   no  more    ought    a   constable   to  do 
so    in  the   nigiit .     HELD,    tliat   this    is   not    like   the    case    of  the 
HuTidred  because    it  -is   the   constable's   duty,   upon  notice   being 
given  him  to  pursue. 

The   constable    is  a  public    officer  elected  to  do   a  public 
duty,   and   if  he   does  not    perform   it   the    Public    is    injured. 
There  are   two   points   in  this   case    -  1   -  that   a  public    officer 
declining  to   perform  his   duty    is   guilty   of  a   crLTiO,      2   -  that 
where    there    is  a   statute,    the   breach   of  whicl;   is   prohibited, 
such  breach    is   a   criine  whether  the    statute   expressly   says     the 
violation  of   it   shall  bo   a  crime    or  not. 

TAYLOR'S      CASE,    p.    SG,      Inf onriat ion  for  utter^ing  bias-        » 
phemous   expressiong   against   the   Christian  Religion.      HELD, ■ 
Christiai^iity   is   a   part    of  the    laws   of  England  and  to   reproach 
it    is  to   speak    in   siibversion  of  the   Law;    such  blasphemous 
words  are  a   crime  against   the   lavz-s,    the  State,   and  the    Goverrr- 
ment   and  therefore   are   punishable. 

Blasphemy   is   a  Common  Law    crime   and   is   also   punishable    in 
the   U.    3. 

AlTOMYi.iOUS ,    p.    96,         Indictment   for  defamatory  words    spo- 
ken of  a-  justi'ce    of  the    peace.      HELD,    as    the  v/ords  were   spokai 
of   the   J.    of  P.    in  the    execvition  of  his   office   th-e    indictment 
is   good,   and  all   actions   for   siande-ring  a  J.    of  P.    in  his   of- 
fice tmy   be   turned   into    inwlictments. 

In   this   case    the    Public    is    injured   if   its   officers  are 
slandered   or   in  any  v;ay  dishonored,   for   in   such  a  case   i-t  may 
be    said  to   interefere  with  the   performance    of  his   duties. 


R£X  V  \7IJLA':^Ly,    p.    97,        Iridlctu.ont    of  e.   brev/er  for  de.- 
iivex'inr-  ic   ^allon^    of   boer  as    13    gallons.      The    i-Drosecution 
c 0 1-1 1 e ride d  that    ihis  v;a3   a/i   indictable    offence,    a  public  fraud 
in   tl:e   course    of   trado,    and    ihai   thui--    is   a   di3t inctioo'i  be- 
tween privais    fravids   and  frav.ds    iri    ';h3    coiirss    of  tradeo     HELD, 
the-  offencs    to   be    indictable  .viust    be   such  as   affects   the   Pab-- 
lic«      li'i  Stich    ii.ipo3i-ion3   or  doceit3  "where   cor.jiuon  pinAdonce  may 
guard  aj^ainnt    them,   the    offence    i3  riot    indictable,   b-:it   the 
party   is   left   to  his   civil  remedy;    but  --ilzeve   false  xiieasurea, 
or  v/ e i ^'.it 3 ,    or  tokens  are   uacd,    or   suc^x  netliods    taken  to 
cheat  as   people    cannot    gviard  at;aiJi3t   by   ordinary    care    the 
offe/ice    is    indictab?.e.      Here   no   false  measures,   v/eisiits   or 
uoirens  v.'ere   u.'sed  and   so   this    i3    sirapiy   a   private    bread::   of   can 
tract, 

A   statute   as   early   as  Zdv.'ai'd  3rd  iiiade   dealing,  v/ith  false 
measures   a   crL-iie.    arid  a    statute   under  TIenry   Sth  made   the  use 
of   x'alse    tokens      crirainal;    so    it-   is  not   necessax'y  to   rest 
these    ci'ir.ies    on  Coiiicnon   Lav/  alo-ne, 

REK  V  DELAVAL,    p,    101 »        Information  for  a   conspiracy   to 
put   a  youn-^   cii''l>    ^^-^^  apprentice   to   one    of   tlie   defendants,    into 
the   hands    of  the    other  defendant   for  the    purposes   of   prosti- 
tution,  \7ithoiit    the   knowled£;e    or   con'5ent    of  her   father o 
HELD,    tlxis    is   an  offence   against    public   decency   and  ^^ood  man- 
ners  arid  this    court   has    jurisdict iori   over   such  acts;    this   is  ■ 
also  a  conspiracy   arid   corifedoracy   araoricst    the   defendants  T/hich 
clearly  brings   the   /I'jatter  v/ithiri  the    pale    of   the    lav;* 

There    is   a   little   difficulty  here    xri   shov/in^  a   violation 
of   public   decericy,      IIo  doubt    this  would  be   an   offence    in    ihe 
ecclesiastical   co^irtSc      Fornicatiori  was   an  ecclesiastical 
crime;    but    if   public    it   v/ould   come    in  the  -Kind's   court   as   a 
crime  a::ainst    p'blic  decency «      lii  the   U,    S.    there   are   no 
ecclesiastical  Courts   nor  have    the   Coii'ir.ion  La'.:   courts    succeeded 
to   their   jurisdic  tiori;    tixe   ^^.eneral  resvtlt    i-s    tiiat   alniost    all 
such   criivies   are    3tatuto:-y   offences    in  the   U.    3» 

Ari  Irif oiT/iat iori   is  i.;Uch  the    same    as   an   indictment,    except 
that    the    Grand  Jury  does   ;iot   pass    ori   it,    but    it    is   presented 
directly  to   the   Court    by   the   attorr^ey   General   ori  his    official 
oatho      Iri  sorae    states   the    Gx-and  Jury    is   partly   or  fulli'  done 
away  v/ith   arid  all   ci-*iiues   are   presented,  to   the    Court    by   ari 
Information   -  as   for   instance,    in  Cal,,    Gorin,      etc, 

REX  V  ELAI-CE,    p.    102,         lndict;.iOnt    for   forcibly   break iri£; 
and  enterin£^   close,    riot    a  dv/ellins,  house,    and  urilavrfully  and 
unjustly   e-xpellijif;,  the    prosecutors   and  keepin^^  t:-.em  out    of 
possession,      Tl^e   defence    contended  that    t^iis    is   a  mere   privalte 
trespass,   as   the    "force"    is   applied   orily  to   the   entry,    the 
expellinr  and  keepirc  out    of  possess iori  beinr,   only   said  to  be 

10 


unlav/i'ul   and  unjusi;    and  no  breach   of   thy   peace    is    statedo 
riiLD,    uri   iridic':ab-'.e    c-Zi^uaj   ox\[^.t    to  appeax'   on   i;.e   face   of  the 
ii-idic'^.-.j/it   arid  no   foi'ce    Oi*  violoiice    i/idictable    is   sho'.m;    noi* 
i3   an  •ivnlavfai  a3  3ej..b3Ly    cha^'^ed, 

?..e    ni'viu   :"uie    i3    iL.at  an   indictable    offence    o"a'_'.t   to   ap— 
T.'cai"   on    ^i.e   face    of    v  e    indie  ii-.ont «      Peaceable   po?!3e33ion  of 
per-^ortaJL   prope^'i^'    only    is   pi*oiectsid  by    the   Ci-l.iirial   La'.To      The 
/i.ei-e    iaJiin£,    of   land  is   not   a    crL.ie   but   a   toi't,   unle3<T    it    13 
taken  '..'i'f,.   violence,   ':.'l\eii  the    b'-2ach   of    '".l.e    peace   and  not    'she 
taking,   of    the    land   is   the    ci'ii..irial  act, 

R£:v  V  LYIJU,    p.   103,     I.';otion  fOx-  an  axvsst    of  ju.dcement    an 
a   convictio.n  for    taking  a  bv.i'ied  body   for  dis-jectiori,    on  the 
{;,ro'.u'id  that    it    .'ao    an  off^^nce    of-  ecclesiastical   c0£,.ni2ance 
and   riOt    indictable   at    coi'jii.:on  lav;»      VELDy    t;.e    off  jnce    is    co.^- 
nizable    in  a   Ci*h.:ij:ial    coui'u   a"!    it    is   hi-^^.ly    iridscent   and 
a,^ains!;    ^O'J'^^  i.'.oi'als;    the    tai^in*;,  bein;,  for   dissection  does   riot 
iiiake    it    the   les^?    iridic ': able  . 

Coi.L....onv;calt:-   v  Taylor,   p.    5  Dinney,    277,      Indictu.ent   for 
LiTilavf  ..lly   oritei-iiir   a  house   axid  UiaXin^   a   f;,i'eat   noise  waereby 
the    irjii^atas  vero    so  f .•i^^.tened   that    the  man's  wife  had  a  uis- 
carriage,      HELD,    that    ti.e   offence    laid  vas    indie  :able   as   a 
i.iisdeaeanov. 

P.l;::  v  EUPJI^TT,    p.    104.      Indictuient    for   innoculatin£, 
chi~d/-en  wit:.    SL^^allpox  and   caujin,;^   thei..  to   be   carried   into 
arid  alon{^  a   public    street,      Defenda/it    contended  that    ^his   './as 
not    a  public    offence   because   .:e   ortly   directed  .Ai   patients   to 
attend  iSiu  at  his    office    arid   ordered  air  and   exercise    for 
their  recovery,      HELD,    innoculation  i..ust    :ake   place   under   sudi 
£,uard3  as  not    to   en'danner  public  health;    it  "i^as  uj-ilav/ful  at 
all   tii..es   and  an   indictable    offerice    to  expose    in  a   public 
place   of  resort   persons   afflicted  v/ith   conta£,eou3  disorders, 
and    therefore    liable    to    ca.ii..unicate    thei..    to   the   Public, 

Tho   act    of    innoculajing,    is   lav;ful   enoufjl-;   ij'ider  these 
circiViS  ;ances ,    but    the    subsequent   acts  ..lake    tr.e  '."hole   proceedr- 
in£   a   criue   arainst   the    cotxuv.nity. 

People   V  Sand,   1  Johnson,    78,      The    indictziient    for  a  nui- 
sajTice    in  keepinj:    50   barrels    of  ^ujipov/der  near  dvoliin^  aouses. 
I.'jULD,    it   does   Jiot    auiount    to  a  -nuisance   because    it   v;a3  not 
char'^ed  to   be   ner^li^ently  kept,  • 

// 


ceATTY  V   GILLBAiiKS,    p<,    105,      Appeal  fi'oin  an   order  to   firjd. 
suraties   to  keep   the   peace,    adJ.ressed    :o   the  iVie/.iborii   ci'    t.h=.. 
Salvation  Ai-i-.y ,   because    at   theix"   asseivibly   othei.'  persons  had 
been  ace^usooraed   io  disbui'b   the    peace   by    i„rov;inr;   stones   and 
fijj.tint;^,     hLLD,    a  liian   ca/uiot    be   punished  fox"*  actino  la'^'fully 
si^.iply  because  he   kno».73   that  his    so   doinj:  i..ay    induce   anotrier 
iaa/i  to  act    anlav;rully  0 

T.ie   Salvation  Ar^y  was  not  here   responsible   aithoas;'^  they 
ltne\7   that    their  actions  would   cause   a   riobo      '.That   finally   de- 
cides  this   case    is    that    tlieir  i.:otive  was    of   such  a  naVa.-'o   that 
the   lav    ou£,ht    to  pro-ect    them;    if  they    inbended   to  provoke   a 
riot    t.^e   result  v/ould   be   different , 

RLSPUELICA  V  Ti]I3C-ri;?.,    p.    lOS,      Indicti..ent    foi'  i.uali- 
ciously  killing,  a  horse  „      Defendarii    cortiended  that   the    offence 
ViTavs-  not    indictable   and   that    tr.is  v/as    si^iply   a  private   tres*- 
pasSo     H£LDy   as    the  act   was   done  inaliciously   it    is  a   public  • 
wron£,    aa    the    priificiple    is  that   an  act    of  a   public   evil  exaai- 
ple    and-  against    £ood  norals    is   an  offence    indictable   at   Com-- 
mo/i   Law , 

A  misdei..oanor    is   cohi^iitt in.r,  or   on-iUiitt in^^  an  a-ct    in  viola- 
tion of   a   public   lav/;    cor.i..;aj'idinc  or  prohibit inr    it, 

COrl'.:OIT.'fi:ALTM   v  ECKE:'.?  ,    p,    110  o      Indictr.ient    for  a  uisde- 
aearior  for   cutting  a   deadinr    a  walnut    tree    in  a  public   con-vnon, 
the   property   of  which  was   vest-ed   in  the    Si-r_istees   for  the   use 
of   the    ij-ihabitants    of    the    tov;no      H£LD;   u.alice  hei^e   forras   the 
Cuilt   of   the    offence   and    if  the   tree  was   useful  for  public 
convenience  J    orna.Vient,    or   shade,    the    indie t.aent  will  liCo 

Every   act    of   a   public   evil   exaaiple   and  against    good  Lior~ 
als    is    indictable    at    eoir-aon  lav/^    thus   an   injury   to   the   propei*- 
ty    of  the   Public    is   a   crii.ie, 

CCLUaOirwiiALTH   v  SILSBEE,    p.    111,      Indie  ti..ent    for  willfully 
and  fraudulently   giving    in  more   than  one   vote   for   selectmen* 
Defendant    contended  that    the    indictraent   v/as   insuff  icierit ,    as 
the    offence    could  not   be    one   at    Coiiiiiion  Lav:   for   the    Goiri.ion  Law 
did  not   know  th-e    office    of   selectraen;    and  there,  is   no   p-.uiish- 
ment   by    statute,      HELD,    it    is   a   genei'^al  pi'inciple   that  v;here 
a   statute   gives   a   privilege  and  one  wilfully  violates   this 
privilege   the    Coauaon  Law  v;ill  pu.ni3h  such  violation;    therefore 
tiiis    is   a  public    offence    as   it    is   a  threat   at   the  most   valued 
public   institutions^ 

This    is   a  violation   of  the   rigiits    of   others,,    and  hence 


u^ 


is   a    ci'ir..n    at    OouL^iCri  La./;    the    cria.e  IiOi'e    Rcnsiitg   in  ari'e.ctirig 
the   Public    tha.-*o"u^2.  a   pviblic   elcc^ioi,    iri  the   resv'lt   oi"  v/hich 
the   Public    i'2    i/i-iai-ea-iede 

GCri.OirwIlALTH   V  5?:A''.?Lii:3S,    p,   113c      I-ndietv.ent  foi"  eitdiib- 
itiri£  pict^.-ii'G   vihich   is    indecent   for  nvoney.,      Defendajii    elala:ied 
thai    i'':.   'a'S-s   no-   an   indicta.bie    oxfonceo     HjSLD,    acts    of  public 
indeci:;nc,.    are   alvs'ays    indictable »      T,.i3    is    in   Laiv   a  publicaticri 
for    the    indictment    aays   the   pictux*e  vas   exl'.ibited  to   sundry 
pev'soiiFi   foi"  LiiOiiey i    eaen  though    it   does'  not    say   in   express 
tei\;iS  that    the   defendants   published   ito 

Thui-e  must   be    some'  xvublic   standai'd  by  which  an  act   of 
this  kind  can  be    judcedo      In   saeh  a    case   as   tliis   any   publica- 
tion  shocks   the    public    sense;    Bi.oMXiir    the   picture   to   fi-iends  ■ 
ViToiAld  not   be   a   publication  even  thoufh  a  huridred   sav;   it;    but 
if   it   v.'ag    thrown   open   to    the   Public   there   v;ould  be   a   publica- 
tion  thou,;;^:.   onl^    one  nan   sav/    it  a 

KAIIAVAN'S    CAS£o    Po    115 <•         Indicti^.e/it    for   unls'Jfuiiy   arxd 
indecently   throw inr    the    body   of  a   child   ii-i.;o   the    rivers     HELD, 
it    is  a   criiiie   ar^ainst    public   dec-ncy    to  do   an;,    act   disturbing- 
the    sac/edriea-s    of   the    sepulchers   of   the   d.es.d   or  the    ric^-.ta   of 
decent   burials 

Ilotes   Ti.is  act    is   an   indecent    one   and   so   shocking,  to  the 
coiiiTiVunity   tluit    it  naist    affuct-  the   Public  ^ 

Owen  V  Price  J,    3.2  Q, ,  3=    D,    247 «      Iniicti:.ejrit    for  bui-ning;  a 
dead  bodyo      I;£LDj    the  iriere   statement    of   the   burning  of  the 
dead  body    is   not    enou?;..   for  a    criiue^    a-s    it   depends   on  the  me- 
thod whether   it    offer^iis   public   decency-^ 

Queen  v  Stephens,    13  Qo  La    Do   oSlo      Indictiiient   fo."  burnig 
a  dead  body  for  the   purpose    of   preventing  a   coroner  frofA  hold- 
in£  an   inquest,      KiiLD,    the  purpose    of   the   act    in  th.is   ease  m 
ijiade   it   a   crhTiirial   offenceo 

COMhOIIV/iiALTH   v   GALLi\GH/dI,    po    liu*      Infonuation  for  wiolc- 
ediy  and   coi'i'uptly   agreeing  to   vote   aii.d  for   so   votin£  at   a 
court   election  where   the    defendants   as   justices  were  -acting 
in  their   official   capacity   as  fiiar^istrates   of   elections     HELD, 
this   offence   does-  not    come  within  the    statute   against   buying 
and   seilinff   votes »      But    such  an  act    is  an   offence   at   Coojiion 
Law   for   it    1?,   ari  act   "conti-a   bonos  laores";    arid,  there   are 
authorities    that\There   a  raagistrato  has   acted  partially,,  maly 
iciously,    or   corruptly    in  their    official   capacity,    they  are     ■ 
liable   to  an   indictments 

Thei'e    is   a  decided  difference   betv/een  this   case   and  the 

13 


trading  of  votes  by  iridividuals  nci  in  ofi'iueo   The  c-'iiiie  in 
this  case  I'ests  on  the  fact  that  there  is  a  i.iisdoinc  of  a  pub- 
lic duty;  bat  where  a  private  vote-r  casts  his  ballot  he  is  . 
exercisinr  a  mere  individual  rielito  flowever  there  is   a  dif- 
fSrerice  between  the  inicrcharige  of  votes  between  individual  • 
voters  and  the  buying,  and  sGllin^,  of  votes  as  in  the  latt'er 
case  the  individual  uses  a  public  right  for  private  gainso 

COlJlIOTn'rEALTTi"  V  \7ING,  p.  119,   Indictment  for  maliciouBly 
di8chax*£,inf,  a  guri  v/l.ereby  a  wox/ian  was  throw/i  into  convalsions 
and  craixips,  defendant  kriowinc  that  she  v/as  s^.^bject  to  ^iTch 
effects  and  beij-i^  warned  and  requested  at  the  tinie  riot  to 
fire.   Defendant  v/as  enir:a£ed  in  fov/linr  on  a  highway  which  was 
coinnionly  used  for  such  pui'poses,  ■  Defsridant  claimed  that 
there  v/as  a  private  nuisance  only.   The  jury  was  instructed 
that  if  defendant  had  good  reason  to  believe  that  the  above 
consepuerices  would  be  produced  and  had  notice  just  before 
firing,,  he  is  guilty,   ::!£LD,  the  offence  described  is  a  mis- 
demeanor as  it  v/as  done  italic iously  and  was  a  disregard  of  the 
safety  arid  life  of  the  afflicted  part-y;  the  firing  was  thus  a 
v/ariton  and  deliboi-ate  act  of  n;ischief , 

Such  cases  as  these  are  instances  of  the  conflict  of  in- 
dividual rights  arid  there  is  hlO   general  principle  to  affect 
all  cases;  such  also  include  the  blov/ing  of  a  v/histle  in  the 
viciriity  of  sick  persoris;,  in  all  these  cases  conflicting 
riglits  xviust  be  in  soiiie  was  reconciled  and  tiie  benefit,  to  ex- 
cuse tlie   defendant,  must  justify  the  injury  done.   The  Public 
says  "you  shall  i-iOt  kill  this  woman"  and  the  killing  of  the 
woman  is  thus  made  a  public  injury;  but  it  is  the  Public  and 
not  the  woman  which  is  in  question, 

PeoPle  V  JACKSOII5  p.  121,   Indictment  for  selling  lottery 
tickets.   The  prosecution  contended  that  such  a  place  \Tas  a 
public  nuisance  and  a  gaiuing  house,  HELD,  selling  tickets  in 
a  lottery  is  different  from  keeping  a  lottery  and  in  the  for- 
mer there  is  not  necessarily  any  tendency  to  bi-eaches  of  the 
public  peace , 

This  is  a  c-ase  wh^ro  publicity  is  necessary  to  affect  the 
public  sentiment.   There  is  no  statute  against  gaming  houses 
and  yet  the  keeping  of  a  cominon  gaming  house  is  indictable  at 
Common  Lav;,   An  unauthorised  lottery  is  a  public  nuisance  but 
Iteeping  an  office  for  the  sale  of  lottery  tickets  is  not  a 
lottery,  and  there  is  not  principle  upon  which  this  indict- 
ment caTi  be  supported. 

U.  3,  V  HIMG  QUOIIG  CHOW,  p,  123,    Indictment  for  coming 

14 


1 


into   the  U,   So  v/ithout    a  lawful  i-i^Jr.t   so   to  doa      The   statute 
enacted  by   Gon£,i*e3B   aays    thai   any   Ghinege   convicted  aiid  ed^-^ 
judged  to  be   not   lav:fully  entitled  to  reinain   in  the  U,   So    •  ' 
3hall  be    imprisoned  at  hard  labor  for  not  more  than  one  year© 
Arid  then   rei^ioved  froti  the  U,  S.,   UTileaa  he   can  prove    that  he    ■ 
is  hei^   lawfuilyo     H£LD,    the  urilawfullneas   in  the    statute   is 
not    the   basis   of  criuiinal  proceedure   or  detention  but   rather 
a  wan-ant   to    send  theiii  back.     The  whole  matter   is  polibieal 
and  not   crLiiirial,    and  the    iiuprisornAient    is  rxot   a  punialuient  but 
simply  a   temporary   detention  until  they   cart  be    sent   baeko 

This   case    is   valuable   as    3l:ov;ing;  the   differerice   bet-^yeen 
a  political  and  a   criniirial  offence,    and  it    s;.o\73   that   there 
are    soi.ie    cases  v/here   persons   are   dealt   with  by  the    ^overriment 
without    3U«h  persons   bein^,  crii.iinals.      The    statute  here  wag 
not   passed  as  a  pu.n i sl-u^ie nt  for   criiiie  and  so  the   proceedings 
are   not   necessarily  carried  on  -hi    criijirral  proceedure « 

Lee   Joe,   v  U^   S.,    149  U,  S.    G9S„     The   ri^ht   to   exclxide 
or  expell  aliens   or  any    c'.ass    of  aliens   is  an   iriherent  arid   iii- 
alieriable   ri£;ht    of  every    indep indent   riation. 


SECTION      T7^0. 

lHCOIiPL£T£     ACTSo 

Bishop  defines   an  at'.eupt   as  an   intent    to  do  a   partieular 
criruinai  thine  coupled  v/iti:  an  acct   tov/ards    it,   faliinc  ehoirt 
of   the   thir^g   intended,    but    stif  fie  lent    in  uiacriitude   and  prox- 
L-iity   to   the   fact    interided  to   be   taken   co£/iizaru:e    of  by  the  • 
La\:  o 

3o  ari   indictable  atte^^pt    exists   only  v/heri  the  act   faULa 

s-.ort    of  the    substantive    crL^e   and  when   it  proceeds  from 
the    >jpecific    intent    to  do  the    entire   evil   thingo      In  this   in- 
dictable wrinrj   of  atte:.xpt,   the    act  i.i.,y  be    either   evil   or  in- 
different   in   itself,   but    there  ii-oist    exist    an   intent   to   d.o  aJi 
act   which   is   criminal;    and  if   the    substantive   act   aimed  at 3 
when   coLipletedj   v.'ould  rxot    coristitute   a   cringe,    there    can  of 
course   be   no    indictable   attci.ipt    in  relation  to  that   act;    and 
also    if   t.e   defendaiit   does   all   that   he    intended  to   do,   he   car* 
of  course   riot   be    iridicted  for  ari  atter.:ii5t    to  do   soxnethinr,  i;ioi*e, 
arid   if  he    then  has   done   rio   crime  he    is  not   p\\nish:^ble   at   allo- 

Eeale   thus   suins  up  the    charactei'ist-ics    of  an  attempt  =» 

Art  attempt    is  necessarily   a  failure  <, 
2«      The   ac:   alorie    is  u/ider  discussion  here  arid  it    is  the   act 
wiiich  fails;    30   if  deferidant  has  done  all  that  he  has   attscip- 
ted  and  has  not    comiidtted  a   crLae,   he    is   riot    indictable;    so    • 
also    if  he  has    failed   in  ari  attempt  -to  do  a  physical  act  TThidi 
is  not   a  crime,   he    is  not    indictable, 

3a     Therefore    if  the  meani   are   riot   adapted  to  the    end  the   de- 
fendant   cariTiOt   be   piuiished»  <for  he  does   not    fret   near  enough^      ,. 

15.  '> 


This    is   like   the    caae    of   Hespublica   v  Ivlaiin,      So    in  Regina   v 
Collins,    the   def:. ,   has   not   done    the   physical   act   he    int-ended 
to   do  but  he  has    conie   near  enoaa^:    -.o   concern  the   Publico 
4.      Eveyy   accoiiplishuent    necessarily    includes   an  attejipt   arid 
there    is   always    some  raoment  when  the    atiempt  has   been  made   and 
the    act    r/o  i    yet    coi^pieted;    bat    in  a   coi^ipleted  act    the   attempt 
is  iuei.'i^ed,      Aris    so    there    is   no   pu/iislnnent   -ror  the   attenipt   when 
the   act    is    conipleted   in   the    sauie   jui'isdic tion» 

fl£X  V  SUTTON,    p,   125 0        Deft,    indicted  for  having   in  his 
possession  two    iron   staiiips  with   the    intejit   to  make    coonter- 
feit  jxioney;    also   for  I:avin£,   counterfeit  money  with   the    intent 
to   pass    it,      HELD,    thougl-^  the    bare    intention   is   not    punisliable 
yet   vifhe/i  joined  with  acts    it  i/.ay  be    so   arid  ari  action  -in   itself 
may    be    punishable   with   an   evil    intention   joined   to    it.      The 
act    capable    of   being  tried  here    is   the  having   in  possession 
and   in  this   case   a3.1   that    is   necessary   is    the   act    charged  and 
a   crirainal    intention  joined   to    it. 

This   case    is   not    law    today  as    it    is    settled    that   at   Com- 
uiOTl  Lav/   tnere  iiiust    be   an  act    to   constitute   a   crime,    and  a  man 
is   not    criiuinaily    responsible    for  what   he    is   or  for  what   he 
has    but   for  vrtiat   he  has   done;    so   at    Comiiion  Law   thei-'e    carmot 
be  -a   criiue    except    as    it    consists    in  doing   or  having   done    some 
act,      or   course    the   procuring   of   these   dies  v/'ith    the    intent    to 
use   them   is   a   crime,    for   it    is   an  attempt    arui   attempting  to 
comi.iit   a   crixiie    is   a   d'hiie    except    in  petty   cases.        To   consti- 
tute  an  attempt    i:    is   as^entiai   that    there    should  be   an  un- 
lawful   coincident    intention   to   do    the    thing   attempted,    v/hich 
iiitention  must    be    logically    i/iducible    from   ti-.e   facts  o 
1  Bishop   Crimifiai   Lav;,    sec.>   204 »      It    is   not    criminal   to  have 
counterfeit    coins    ii>  possession  v/ith   the    intent    to   pass   them, 
but    to   procure    such  v/ith   a   criminal    intent    is   a.n   offence, 
ComraonVifealth  v  horse,    2  i.lass,    133=      The   possession  of  barjk 
bills   purporting   to   be    bills    of   a   non-existing   bank   v;ith   an 
intent    to   pass    them  as   genuine    1-3   iio'c   an   offence   v/ithin    the 
SLfawU^e« 
Rex  v  Feat-i,    Russ,    arid  Ryo,    184   overules   Rex  v  Sut;oji=. 

R£>:  V   RODERICK,    p„    127:,         Indictment   under   a    statute   for 
a  misdemeanor    in   attmpt  ing   to    carnally  Jinov;   a    child  urider  the 
ago   of   tv/elve    years.      Deft,    objected   thali  an  attempt    to   commit 
a   statutory  misdeuieaiior   is  /lOt    a  iuisdemearior ,     HELD,    an  at- 
texapt   to    comiViit   a  laisdemearior   is   a  misdemeanor  whethe-r  the 
offerice    is    one   at    CoiUTiOYi  Law   oi*   is    created  by    statute « 

An  attempt    to   comiait   a   crime,   whether   Couitrion  Lav/    or   sta- 
tutory  is    in   itself  a   criiiie,    -  usually    a  misdemeanor,   unless- 

16 


expi-essly  aade  a  felony  by  statute. 

y 

R£3PUBL1CA  V  MALIN,    po    127.      Indictnient    for  \xx^.   treaaoji. 
Deft,,   luistakiriL  Americar.  ti-copa   for  Di'itiish,   went    over  to 
thenio      The   prosecution   offei-ed   evidence   of  woi'd<J    spoken  by 
the    prisoner   to   prove  his   intent.      HELD,    no   evidence    of  7;ordB 
gpohen   relative    to   the   deft'sa  mistake    can  be    adi.dtted;    for 
any   adiicrence   to   the   Ai..erican   troops,   althou£,h   contraxT   to   the 
design  of  the   party   carjj-iot   p033ibly   come   within  the    idea  of 
treason, 

T-.is   bein£;  an   iridic tment    for  the    substaritive    crij_ie    of 
hif^;    treason,    the    attexupt   did  not    come   near   e^ioug/'i  to  the 
CO.  pie  ted  act    to   constitute   the   criiae    charged* 

7/ALSK   V  PEOPLE,    p.    123,        Deft,   below,    an  alderi-jan^bwaa 
iridicted  for  a   proposal  ruade   by  hiiuself   to   receive   a  bride    to 
influerice   his   actiori   in   the   discharf,e    of  his   duties,      H£LD, 
that    the    atabute  has   not    created  an   offence   for  proposal   to 
accept   a   britte;    bat   at    Corxiinon  Law   bribery    is   oriciinal  and  an 
attei^pt    or   offer   to  bribe    is   likewise    criiuinal. 

The  nature  of  thi  •  crii^ie  is  like  an  attempt  o  It  is  a 
solicitation  arid  is  eriiuirial  because  it  is  a  step  toward  a 
crii.ie.,  In  solicitative  atteupts  arid  the  like,  the  attei.ipt 
rests  upori  the   criiuinaiity  of  the   act. 

May    sec,    19,      A   soiicitatiori  to   coui-iit    a   crLae    is   fiot   ari  at- 
teiiipt,    bein^  a  nere   act    of  preparation;    arid  a   soiicitatiori  to 
couj;iit   a    sioail   cri;.ie    is   not    re  guarded  as    of   eriou^^-;  public    im'- 
portance    to   be   punished   as   a   crime,    but    aolicitatiorr  to   commit 
a   felony   or   other  a^rravatod   crime    is   a   crii^inal   act, 

U,    S,   V   STEPHENS,    p,    130,      Irif on.iation  for   attempting;   to 
introduce    spirituous   liquors-   irito  Alaska   coriti^ary   to  lawo 
Deft,   wrote   to   a  firm   in  Cal,    request iris-^  them   to   ship  him   some 
liquor,  he   bein^    the/i   iri  Alaska,      HELD,    the   act    of  writing  the 
letter  did  riOt    constitute   ari  attempt   but   v;a3    orily   a   prepara- 
tion..     Ari  attempt  must    be   ari  act  v;hioh  would   q^vI   iri  the   con- 
suTiiT^ation   of  the   partic^oiar   ofrerice ,    but    for    the    irite-r-verit ion 
of  circumstances    independent    of   the  v;ill   of   the   party. 

There  is  a  wide  differerice  betweeri  the  preparatiori  for 
ari  attcuipt  arid  the  attempt  itself,  arid  i-.ere  there  was  only  the 
attempt  to  purchase  the  liquor  and  rio  attempt  to  iribroduce  it. 
All  cases  of  t.-  is  kirid  must  be  decide  merely  ori  deg^ree  and  a 
£eneral  rule  caririot  be  laid  do./n;  but  the  Deft^  must  get  some- 
what near  to  success.  The  seriousness  of  the  crime  attempted- 
will  a-lso  make  a   lar£,e   difference, 

1   Co   N,    C,    5S9,      Poison   £;,iven   to  a   person  wit.,   a   su^rG^tiori 

17 


to   adininistei"  dt   to  ariOther.      Kelad,    not   an  attempt   at  murder, 
56   Eai-bai-s    126  o      Indictment    for  an  atteupt    to   coriirait   a  bur— 
glavYo      Deft  o    left   his    tools    in  f.-ont    of  a  house   and  \7ent     • 
back    to   £6 1   a   crow-bar   to   open  a   s-.utiero      Held,    iio  attempt 
at   burglary  <, 

GLOVER   V   C0L2.1(jU"'£I'Jj7U  t    P»    133,         Indictiiient    for   an  at- 
tempt  at    rapeo      Priaorier  voluntarily   abandoried  his   attempt  ■ 
before  he    cornpleted  the    rape,      HELD,    if  an   individual   proceeds 
so   far   in  a   crii.iinal   enterprise    that  uis   act   amourits   to   an 
indictable   atteuipt ,    it    does  'not    cease   to  be    such   althous^-.  he 
then  voluntarily   abandona    it. 

If  an   indicta;jle   atteiupt    is   coi.iinitted  voluntary   abandon- 
ment  does   not    remove    the    £,ailt ,    a3   the    offence    is   then  com- 
pleted before    it    is   abandoiied;   hov/ever   the   deft,    can  theri   only 
be    indicoed  for   the  attempr;   and  not    for   t::e   v/hoio   act  which  he 
does   not    accomplish* 

COI.iI'.;OM/i:ALTH    v   RA!IDOLPK,    p.    134,        This   was      a    soli-cita- 
tion accoix.panied   by   offer   of  i.ioriey   to  u.urder  another  man, 
H£LDj    here    there    is    Bo^iethin^;  r.^ore   than  an  uridisciosed  attempt 
for   there  was   an  act   done,   a   direct    soiici  tatiori   to    comjiit   a 
mui-der;    and  a   solicitation  zo    coiiM-iit   a   felony    is    indictable   at 
Cor.-uaon  Law   althou£,h  perhaps   not   a   solicitation  to   commit    seme 
m  i  sd  ei;ie  a/ 1  o  r  3  6 

A   solicitation  to    coi.iiiiit    a   serious    crime    is    indictable* 
No   f:eneral  I'ule    can  be    laid  down  as   to  hov/   serious   the    crime 
must    be  J   but    in  general    it    includes    felonies   arid  the  most 
ser ious  mi sdemeanors  o 

RjBGINA  V  C0LLI1J3,    p,    137.         Indictment    of  def  t «    for  an         *- 
attempt    to    coun-.it    a  felony*     By   jjuttinr  his  hand  v/ith    int&rit 
to    steal   into   a  v/oman's    pocl^et    in  v/hich    there  was   no  money© 
KflLD,    there    is  no   attCi.ipt    to   steal   if    there    is   nothing   to  be 
sto3.en;    and  an  attempt    to  do   an  act   can   only  be  made    out   v/hen, 
if   liO   interruption  had   taken  place,    the    afit   would  have   been 
completed, 

?i.is    case   holds    that   an  atteii^pt    to   do    an  act  "./hich   cariTiOt 
be   accompli  shad   on  account   of    tlie    impossibility   of   success    is 
not    indictable o      This    case    is    like   all   the   English   cases,    but 
Eeale   thinks    if  a  uian   sii^iply  make^   aix  attempt    success    is  never 
possible    if    the   act    is   riot    carried  to   success;    and    so   the   true 
question  should  be    -  whether   the   attempt    is   adapted   to  the 
physical  act    intended  and  does    it    coi^e   near   enough   to   concern 
the   Public;    the   physical   act   hei^e    intended  v;as    to    gi'asp    some- 
thing  in   the    pocket   of   the  wocaari,  •^p'^V' 

18  ^^^^ 


JQ       *^Ci      O  * 


C0li-\OlTJ'LALTi]   V   G^ltlEII ,    p.    139,        A93auit   v^iti.    interiO    to 
x'ape   by   an   i/ix'a/it    imdei'  fouriieeri  years   of  a^^e.      Deft,    aoriten- 
ded   tljxt  -,e    could  not   be    convicted,   because    the  lav;  Loi.d3  him 
incapable    of   ciiii..ittin{;,   x'ape;    arid  for   an  atvei^pt    there  LiUst 
be    an  iriteni    coupled  -..'iil-.  an  ac:   and  a   lej^^al  ability   to  do    the 
t^.irx^^  at  teiiipied*      HELD,    ti-.e   lav  v,"i:lc--    ref^ard  (    infarii^    ^j-ider 
foar-,een  as    incapab?.e    of   coLar-iittin^^  rape    uas   e3":abll^i-;ed  v;hen 
t^.e    penalty  uas   death  and  oU{;^i"j.t   not   ncr   to  be   applied.      A 
XiiOnir  of  fourtei;ri   i3   capable    of  tr.e   J^ind   of  force  v/Lic  i   con- 
stitutes aj-i   essential   in£,rediertt    in  the    crijiie   of  rape,    and    • 
BO   he  i^iay  iziaite   ari  assault  with    intent    '^o   coriVnit    ''ape   alt><oiif^ 
by    ari  artificial    rule  he    i3   not    x-'-iJ'^is^-a'ble   for   the    coiTipleted 
act    itself, 

Kere    tl.ere    is   an  atteuipt    ^o   c0i.iUiit   a   punishable   act 
v»':  ich    th&   deft,    doe^   co...;..it,   but   for   soue    reason  caraiot   be 
puTiis:  e.^  for    it;    yet    the   at'-.ai.ipt    is   pu/iishable   and.   is  not    then 
luer  .od   ill    the    adt ,      ?o    it    is    the    sai.ie    case  X7l.er'$   an  atter^pt 
is  iiiade    in  one    ju.-iadict  ion  foilov/ed  by    t,.e    co::':pleted  act    in 
another  jui'isdict  ion;    deft,    can  then  be    puriished  for   ari   at- 
teiiipt    in    t:.e   first    irrespective    of  his   ^i-iilt    iii  t  -.e    second  if 
neit.,e.-    ;ai5e?   accourt';    of  vh.at    is   done    i/i  the    other.      So    iri 
Coiiii-onveal  th   v    Green,    deft,    r.a  3    the    intend    to    c0i.ii;.it    rape    and 
there    is   ar;   assault    coupled  v/ith    this    intent.      There    is   an 
arbitrary    r:ile    tr.a  t   boys   \.mdei-   fourteen  cari/xot    coia..it    rape    , 
but    if   it    is  held   that    '■:,l:\ey   caiiTiot    coii^i.iit    an  attempt    to   rape 
there  must    be   another  arbitx'ary   inilo   laid  dovrn  \/...ic^.   does  not 
iri  fact    exist;    and  there    is  no   jui'isdict ion  ■!:;-. ich  holds   that 
one    cariTiot    be    indicted  for  an  attex.ipt   at   a   crii:.ie  ".Triich   caririot 
fOi-    soue   pirysical   reason  be   accoiiip-ishedo 

COI.li..iON'7f;^VLTF   v  LcDOMALD,    p.    141.        Indict^^ent    for  an  at- 
te^iipt    to   cOi*k.iit   larceny,    but    thei-e  was   no   evidence    that    the 
individual   fro...  vr.oiu  the    deft,    '^ras   atteiapting    to   steal  had  ariy 
property   on  his   person.     TT^LD,    there  may   be   an  atteiiipt  vr.^ether 
t„e    chief   linev/    there   v/as    ariytr.irif^    in   t/.e    poc)?et    or   not    or*  had 
iri   viev/   any   par-^iculai-   article.      Therefore    t..e   atieaipt   iras    the 
ac'!;    of   thrusuiri^,    t..e  hand   iiito    the    pociie :    cj..ibined  v/it^h    the 
intenu    to    steal  whatever  udt-h:    i.appen   to   be    there. 

It   does   not    take    a./ay  froia  an  attempt    that    for    soiae 
reason   zhe    ti.in^   a:te...pted  vms   at    the    ^^iiae    p^iysicaily    impos- 
sible   of  bein£  done,      "^his   case    is   ar^ainst    Heg,,  v  Col^lins  and 
represents    the  uiodern   viev;    in   both   the   U.    S.    and  ilri£.land;    the 
in;en^    go  do  the   whole    crL^ie    of  larceny   exists   and  the   act 
couies  near  enou£,.,    to   couipietion  to   be    taJ^en  notice    of  by   the 
state;    therefore    the   criminality   is   not    taken  away   because    on 
account    of   ari   accident    ti.ere    is  nothing,   in  the   pocket   at    the 
time,      Ti:is    case    is  decidedly   different   froci  v^here   a  nian 

19 


■^  J 

v.-.ile 

iriit^riv    is 

ha " 

act    is 

li3   ...0'.  ive  may   ba    ^aid  'to  be    So   i?il-  his   ene^iyj      i: 
lou-nd  up    .vith   p-..tr,iri£,  a   biolle'-,    into   thai    3i--.^ji-ip   and. 
too    fa-'   di3:ani    ih-Cu.    or.e    ac:    ox    kii:^in:^    to    ccri3:iiu:-3    an  ao- 
'.eiir-t,      re'i'/7et;/i    these    ca^ss    bcei-o   ai'o  uian".    intei'a'iedia  ii    one'^o 
Ih.et'c    l.-.e    -.ine    ig   r.a^-d  to  d^-aw;    but    the  n.ea/is   adopted  i^ast   be 
in   t^.Siuseives   caiciLla:.cd    ;o  brini^   about    tne    .'as'-lt    finally   de- 
\six'e^  arid   tx.ese   .uU3t   be    saue    real   object    at   v.ich    the-  act    is    • 
cinic..   or  else    tlie    public    tranquility    is   not    distUx-bsd^ 

PEOPlxC  V  L££  KONG,    p.   142.         Indictment   for   a/i  assault 
wit-:    intend    to  miirder,      A  policefiari  bored  a  hole    throuf^;.   the 
ro.-f   of   deft's.   building   for    the   purpose    of   ob^ervin?-    if    ihere 
was    a   f^ai.iblinvi,  fc,ai.ie    &oin;^   on    tl'.erein,   and  deft,   having  kno".7l- 
fcd,[^e    of    i c,   arid  believin><^    the    policeman  v/as    on   the    rouf  at    a 
certain  tLue    fired  a   sho'.    throuiy.    the    place    of   the   hole;    but' 
the    policeiaan  at   the    tii.ie  va  3   on   tx.e    roof  at    a   different    spot« 
Ki]LD,    tliere   -jas   here   an   arilav/fa«   attempt    for   tr.e    deft's    in- 
tention v/as    to   isilj.;    there  was   also   sufficie/it   present   ability 
because    t^-.e   deft,   io-iev/    the   officer  v/as   up-.;n   t..e    roof  a/id  with— 
in   ran^e    of   a   bulle '    frOii.  his   pistols      Therefore    the   left's 
mistaife    of   judf^emerit    as    to   the    exact    location   of   the    officer 
is   iu'na" e riai » 

'"i:is    is   an  action   und^r    the    criminal    code    of  Calo    and  an 
assault    is    there   defined  as   an  attexiipt    to   cai»iiit   a  battery; 
so    the   prosecution  her'B   had    to    shov;-  an  attempt    at    baf:ery  but 
Beale    thinks   an   assault    is  a   crii^e    in   it-self.      The    question   is 

whether  the    physical   act    intended  was    to   put    ti.e   bullet 
t!-.rou£,h    the   hole    in  t.-.e    roof   or   to   put    the    bullet    irito   the 
policecian  arid   tr.at   hh   simply    shot    in  thet   direction  because   he 
thcu,;^r-t    tue    policeujari  was   there.      In  the   foi^er   case    there    is 
no  attempt    because    tx:e    deft,   has   comTjieted  what   he   has   attemp- 
ted;   the   cour^   however   took   the   latter  viev;   arid  Eeale    thinks 
ti.is    is   correct.      This   attempt,   hov-ever,  must    of  course   be 
accoi-ipariied  by  a   reasoriable    proximity    to    success » 


SECTION      THRi:£, 
Effect    of  Atft    of   Irijured  Party. 
(a  )      Consent , 
Coriserit    to    the   act    cotiplairied   of   ori  the   part    of   the   per- 
son  ori  xfj::cLi\   the    injury    is   iriflicted  v/iil  generaU.y   prevent; 
thai   act    fraii   becomin  a    criiije,    but    there   are    cases  where    the 
law    says   that    rio   eorisent   will  be   valid.      These    cases   are   gen- 
erally  eiti-.er   for   the    protection   of   certain  classes   supposed 
to   be  not    capable    of  caririf   for  themselves   -  as   a   youn^.  £irl 
cariTiot    conserit    to    carnal    cori/iectiori   -  'Regina  v  Harairi;    or  for 
the   prevention  of    serious  bodily  harm,    the    irifliction  of  v;hich 
is  a  public    irijur  •    in   itself  -  V/ri^l-it's   case. 

•zo 


'  7/''.lGHT''3  CA^ii",  p.  r.^.^,  A  aiOXi  had  anoti..er  cat  off  his 
i-.anJ.  !'£;LD,  t..i?  is  a  c:"iuie  fo.-  both  because  i'o  is  such  an 
ofi'ence    against    the    Pizb^ic   that    consent    is   no   bar   to   the    in- 

dicti.ient, 

R£G1IJA  V  MAR'^IM,    p.   14C ,        Iridic  tiaent    foi'  an  assa'alt   upon 
a    cii'l   be  tv/t^iii   teri   arid   tv/elva    yeai-*?    ole   'Arit.:.   the    intent    go 
carnal-ly   'Ario\<'   axi  abase    her.      Deft,    conterided  that    if  there  was 
consent    bhei'e    could   be    rio    conviction,      p£LD,    t>  is    is    one    of 
a    class    of    cases  whei-'e    t'.e    con^erifc    is    dO   har    to    the    coatriissiori 
of    the    battery   charged,    because    she    t. ix'l    is   by   lav;    incapable 
of   (giving  her  consent. 

In   this   case    if   there  y/as    a  battery,    the   battery   even 
v/ith    consent    concerns   the    Public    arid  the    Public    is    interested 
to   stop    it.      This   case  ;vould  apply    to   all   younr,  girls    ander 
the   age    ox"   consent, 

RiGlIIA  V  BRi\DDf'A'7,    p.    146.      Indictment    for  n.anslaychter 
in  a   football   ^ais^e    in  wl.ich  the   deft,   JUiiiped   into   anotl^er 
player  who  was   kicking   the   ball  arid    so    injured  /lirri  that   he 
died  the   next    day.      H£LD,    th.e   deft,   was   acting  within  the 
rules    of    the    gaiae   arid  he   v/as   not    actuated  by   any  nialicious 
intent    or  acting   in  a  n-iaririer  v;hich  he   knew  would   be   likely   to 
cause    death    or    injury. 

There    is  no  doubt   that    any  act   done    in   games   against   the 
rules    is   do/ie  ;vithout    consesnt   and  deft,    is   liable   for  any 
injury    so    inflicted.      So   also    if   a   ;^ajae    is    so   dangerous   to 
life    and  lii^b   that    it    is   against    the   public    interest    the    game 
it?elf    is    therefore    illegal  and  any    injury   done   therein   is 
criminal,    for  no  inari    can   consent   to   an  act   which    is   reasonably 
likely    to    cause   hir.^  physical    injury. 

COIlViON  'EALTK   v  COLLBET^G,    p.    143.      Indictment   for  assault 
an  battery   of   tv;o   defts,   who   deliberately   retired  to   a  place 
to  have   a  figjnt   arid  did   so   figl~.t,     HELD,    if  the   defts.  were 
simply   engaged   iri  a    restling  match,    as   that    is   a   legal   sport 
there   was    no   assault   and  battery;    but    if   they   engaged   iri  a 
figlit    each   trying   to    inflict    injury  upon  the    other,    they 
should  be    corivicted  even   if  there   v/as   a  mutual  agreement   and 
no   anger   on   either   side. 

Prize   figl-iting  arui   the   like   tend  to   breaches   of  the   peace 
arid  are   therefore  urilawful;    so   if   orie   party   licerice    ariother 
to   beat  him   such   licence    is   void  because    it    is   against    the 
law,      A  friendly  boxing  match  would  probably   be    of   such   a 
nature   that    conserit    could  be    given  on  both   sides;    but    one  has 
no   riglit   to   consent    to   anythirig  which  would  be   likely   to 

21 


cause   him  bodily  ha.^a  o;*  v/hich  v/oald   tend    to   breacnes    of   the 
peace   and   if  an    injuri'    i3    i  .flicted   in    ii.is  iiiarxne;..*  the    consent 
"A  ill    be   no   bar. 


^i.C'^101i£  ■^HRiZf;   CON. 
(b)      G0;iDO;iA'^10;I  = 
1;.  a    c..-l..inal   pi'o-:?ec^^iion    tLe    Public    is    ihe   pai-ty   inbei— 
esood  and  :iOt    ::.e    iiidividual   on  v;..Oi.;   ':....e    iriju-,-*,,    is    ird^licted, 
ar^d    i">.  .3i'ei*0i''e  v.^en  all    tLe    eleiuents    of  a   ci^'Une    are   pi'esent 
no   act    of    t::.e    individual   can  efl'ec':    tie    public    i*i;^Lt,      There- 
fore  nc   fo -rivenes-!    by   the   pa-'t-y    injTx^od   or  r33titution  h^r   the 

offendc--.'   can  uiti£,ato-    the    offence   and  rio  ac':    of   the    indivi- 
droal  v/ha  t e ve r   can  chajriL,e    these    relabicris    if   once    the    coxaponent 
parts    of  a   cri;i.e    are    present, 

GOi-.-OMWiiALTr'    v   3LAT"'f.T/,    p.    lol,      Ir.dic  h^.eni   f  o  /   rape. 
Deft,    corifiended  taat    if   said  v/o^iari  ai:    any    t ii.ie   after   the   act 
forj^ave    the    deft,,    bhen   she    ratified    the   act    and  he    canriot   be 
convicted.      r'£LD,    the    injured   pa:-ty    cannot    condone    a    crime' 
by    excasin!^   or   condoning   or   f orf^iviii;:    the    criii^e    afterv/arde. 

The    crij^ie    of   rape   has  luore    to   do   v/ith    the   breaking   of 
the    peace    and  usini;,   force   than  'Jith   the  v/oiuan's    chastity,    and 
so   riot    even    subsequent   i:ia:L'riafe   v/il^    condone    the    act. 
Co..i.ionvvealtii  v  Kennedy,    IGO  I.la^s.,    312,  '   Field,    it    is   a  viola- 
tion  of  a    statute   pro^.ibit  inc,   entry    on  a   vessel  v/ithout   per- 
missiori  by    a   person   other   than  a   pilot    or  a   public    officer, 
for   sucr.   a   persori   to   board  a  vessel  v/ithout   having,   obtained 

the   leave  X7  icli   the    statute    requires,   withjut    regard  to   the  ■ 
fact   ti;at   per-Suiissiori   i?   afterwards    £iven   to   re^^^ain   on  board. 
135   Ind,,    2G7,      Urider  the    statutory   crime    of   seduction  with 
pi'a.iise   of  marriage    it   has    often  been  held   that    subsequent 
marria£,e    prevents   the    criiiie;    but    there    the    crime    seems   to   be 
not    seducing  hei',    but    seducing  her  and  then   refusing   to  marry 
her  , 


(c)   ACQUIESCENCE  for  DETECTION. 

Where  the  party  injured  siiiiply  affords  an  opportunity  for 
the  c:L'iiuinal  to  operate  for  the  sake  of  detecting  hi:u  that  doe 
not  in  any  way  remove  the  guilt;  but  it  must  be  clear  in  aH 
such  cases  that  the  individual  does  not  induce  the  commission 
of  the  offence  or  consent  to  it,  for  then  it  becomes  partly 
his  own  act,  and  as  he  is  not  injured  the  public  is  not  in 
jixred.   Thus  if  a  man,  Hearing  burglary  is  to  be  attempted  on 
his  house,  has  his  servant  open  t',:e  door  for  the  burglars, 
there  can  be  no  conviction  for  burglary  as  there  is  no  break- 
ing arid  entering  against  the  will  of  the  owner;  although  there 
may  be  larceny  in  that  case  after  the  thieves  are  once  in. 

22 


McDAN'IiTL^S   CASE,   p.   152c        Indictment  lor  i-obbery^     The 
priKoneru   eonspired  aiid   ir-   order  to   get   a   rsv^'-ard  clTarod  7?Gr 
the   appreheneioii  ^';f   robbery^   pif^nried  a  robij;3ry  upoiv  or-v^'  o.f 
tiieir"riUri-;D(irv.   who  vraa    ixapli-jatedo      Two   othsr  pa/^t:i'-)i?  VK-J-=e   in^-    • 
duced  to    esar-v    out   the   seheiua  without   being   i/:->.for?5?,?>d  of  the    • 
congpiraoy  aiid  these    last   two   parties  v/ere   executed  fGr-  -rob- 
bei'-yo   "  BiSLDj    as   the    robbery  v/a'2  upon  onfj  \vho  v/a??  psrf  oetly  • 
wilu!J.ri£   tc    ^ive    up  hiy   beion£,irif,e   a>'id  I'iad  plartucd   '■.'■■   ;■'•'■    so^ 
the    offence   doe a   not    constitute    robbery^ 

In  fehi>f   ease    a«   the    party  ^ipon  ^,7l:a:u  the    iiiippuaod  robbery 
\7af.    coiiixuitted  had  ^^onsented  to   be   robbed  an.}  had  Q'fQn  Vai^'ou^ 
his   cionfede rates   irsduced  the    thievets   tc  rob  him  %hs   t?rln\e   of 
robbery  v/as   not    cou-iaiittedo 

/ilCTGilMGT'OIT^'S   CASillp    Po   154 „      The   deftSo-  i^ade    proposals  to 
tl:e    i^ervant    of  a  u&n  v/hose  niaaufaetor y   tiisy   intviridei   feo  rob., 
Eut    the    servant    told  hits  i.iaater.   vho   iuetrueted  h'Jrci   uo  jc.o   on 
witr:  the    t^onapiraoyo      The   «ervan;-    let   the  deftbo  'i'...  bu.t   an 
their  way    out  with  their  booty   they  were    3aptui-°gdo      UMiDs 
there  v/ae   no  bur£,,lary  hej^e   for  the    entering  v&s   done  ^vith  the 

intent    cf    the   ;L!5agter:,    but    there  wa'^-  a  lar^any  for   ihere  ^!,'a3 
no  absent    of   the  inaster  that    the    thiaveii    ^should,  tsxkt-  hi©  pro- 
perty  a\;ay^   &nd  hlis    obje-i^t    being,  to  defeat   theni  hs  ra^y^i^xii   gave 
then-i  a   ^.reater  facility    to   cujiiiiiit    the    lar^seny  than,  thsy  is'OuU.   - 
other'.Tlse   hfix^   iiado 

Slinilar  cases  to  this  are  t:.oee  of  putting  deso;  l&tt^rs 
into  the  toail  to  detect  fl-«ail  robbers  and  tr.i'S  is  held  to  prs" 
vent   a   sfinvlctrlori  for   robbery  bu':   not   for   lar-ijertyo 

RiK  V  MARTXNj,    po    15C  „        IndistrAent   for  a  uU8d3a--eanor   in 
a8gi^tin£,  a   prisonei'   to   escajjCo      Deft,    entered  th^e   env;losu.re 
a-i'id   succeeded   in  £,e!iiins^    the    prisoner   outs,   but  ■'sas   then  ap--- 
iprehexs.ded.1    it   way   a   pretended  escape   arrang,ed  by   cicnaeno    of 
the    autr.orliieg  and   the    prisoner j,    for  the   purpose    of  ilet-ewting 
the   deft  J      H.SIiD,.    as    the   prisoner  nevsc   esi^aped  nor   j.rct^rvded  to 
escape   but   was    gitnply   acting  with    the    corisent    of   the   author- 
ities^   de  f  t  „    earjTi  o  t    be    c  onv  i e  t  ed » 

The    trouble   \7ith   isas^s   of   thia   Tiature    is  that    the   ess-sn'-'  ■ 
tial   eleruen- 3   to  u^ake   up   the    eriuie    canriot    be    found  aK   the   laek 
of   consent    Is  a   part    of   the    erij^.e;    t.ierefcre   there  Tj/ae  rio 
possible   escape    iii  Rex  v  Martin  and  3g  iio   chance   of  asfsistan^ 
to   an  essape-: 


(d)      COM'RiBUTOHY      GHXJ4£o 
Rj3X  V  3THATT0IK    p«   157,      Indiotinent   for  a   coio.iipAr^^y  to 
deprive    one   of  an  office    of   secretary  in  a  eerta.vn   .Hy-ststY  e-M 

23 


to   prosecute  him  witnout   any   roasoncib.le    or  probab3.3    cau-co   for 
oLtaining  money  under  false   prstensea.-     ¥IEI<T:^    this   particular 
society  v/as    illegal^    and  therefore    the    secretary   of    csuch  a 
ou-ipany  l.ad.  no    interest   w)- ioi:   ths   :irr«   "Jould  protect   but   -.ras 
guilty   of  a   crime   hiniself  =,      a&   he    colieeted  money  pretending 
tl.ere  was    a   real  legal    society.,    ol"  v^hich  he  was    peerstaryj  he 
did.   obtairi  lAo.iey   undgr   a   false   pretense;,   althoug;u   not   with  a 
f  i-audul  e  nt    p  lu'  p  o  s  e  o 

^1:8 re  v/as  no  legal  offioe  Y:ere  and  so  there  couJ.d  be  no 
conspiracy  to  deprive  anyone  of.'  :hat  office;  the-refore  there 
is  not    in  this    case    enough  to    constitute   a   ariraeo 


The    case    of  giving   countei'ftit  Licney    in  charity   is   doubt- 
ful  but    probab3.y  vro'ciZA   constitute    the    saii^e    cri/^ie:    but   that 
does   jriot    touch   our  point   hero   because    thei-'e   would  then  be  no 
contribvttcry   crirrjeo 

RilGIHA  V  PUDSOK,    p.    XoS, 

Iridictuient   for  a    con'ripii^acy   to   cheat    the   p.-osecutor,  ■  All 
the   parties  '!Jer^':,    in   to   a   p'j.blic  house   and   one    of   the   deftSo 
put    a   pen   case    on  the    tab.le   and    uhQn  MerA    out,      Ar^other  re- 
ii.oved  the   pen  and   induce.i  ths    prosecute.'"   to  bet    the    other  par- 
ty \fxieri  he    came   back  that   tiiere  was  no   pen   in  the   boxo      There 
was    another  ];en   in  the   box  and  dettSo   took   the  raoneyo      Defts» 
contended   that   as   each   iy''ended  to    cheat    the    other   they  were 
not   liable  o      HELDj   a.l though   the   prosecutor  did   intend  to    ' 
chea.t   the    deftSo   ti.ese  v/aK   a   conspiracy   on  the   part    of   the 
prisoners   and  defba,.    can  be    eonvifjted.. 

If   two   partj.93    cheai    each   other   it  n'laKea    two   separate 
crii;ie-5   and  does   not    take   awy   crirr.inality   from  either  although 
the   parties    could  not  .na. iutain  a   civil  an tiono 

COMvIOW£ALTl'   v  MOR:-(iLL.;,    pc   iCOo        Xndisti.^.ent    for   obtain- 
ing  goods    an..iar  fal'de   represcntat  iono      BefLs^   had  a  watch  of  ■ 
trifling  value  ^   wj.icu-   by   representing   it   to   be    gold  they 
traded  to  X„    in  return  for-  watches    of  his,   he   believing  the 
watch   to   be   ae    repreeentedo     X's  watches  were   not  v;orth  as 
E'iUch  as  he    represented  althoug^-i    there   v/as   no    intentiorial  rais- 
repreasntation  on  hiu   part-,     K^LDg    even  if  X  made   false  pre- 
tenses aa   to  hi«    goods    it   dees   not   excuse    the    defts^ 

If  two  parties    obtain  goods   JT'rDrn  each   other  u-nder  fadse 
pretenses  J   the    gr<.ilt    of  the    one   does  not   exeuue   the    other  ^ 

24 


r'  ■    ,    '■  .        ■  :         ■ 

but   both  are   giiilty   and  may  be   p  tin  a  she 'i,       ■  ■  '■ 

McCORD  v  PliOPLEj,   po   lo^Q    .    IhdlctiriGnit..  for  nTotaining  money 
under  fal-^e  pretenrae^j,,      Deft.  ^   ■pretQriu..iri£,  he  was  "an   offio.er  and. 

•  had  a  warrant   for  the  'arrest   of  one  X.^,    indue..ffd  Kiija  to  deliver 
up  a   gold  watch o     HBLD^  X  par'i;.ed  vitii  hie  property  as  .an  izi-- 
dueement   to  a    ifupposed  officer  to  violate,  the  lay  and  his 
duties;    therefore    fchs    law  will  njDt   puriiiih  his   co/tfede-raiei,   al- 
though'that    e-or-fedsrate  was    inwtrian:.,ental   in  producing  the   com- 

.  mision   of  the    offence  ^   ay   the    design  of  the   lav;   ie   to   protect 
person*;'   in -hone St    tranme-tlons  ar^ii  not  those  vrtiofo).'  un.v/orthy 

■'  purposes  part  with  their   £,oods  o 

T'hls   oas;?.    t^H-ru'kOt-  be    supportedj    there  wa??   a  er:lme   h^re^    ., 
eoxuuitted' by  the,  deftc      ^.x^d.   it  ina'kQ's  no  difference  -whether  .  ", 
oth?ra  gu'e   al/so   legally   or  aorally  •g.uiXty;    this   is   a  mattei"  •  ■■ 
pure'Xy  between  the    istato  and.  ths    deft  o  .  ■.  -     , 

SIMiiA^Yo        The   faot   that    the    injured  pa.rty  "v^as   injured 
while  himaelf   enga^ei  xn  an  iilegai  aat   against   the   *?^fto  does 
not   leacen  the    Griiuinality    of   the    offencte;    for  the   public, 
'wronfi.    is   equally   great y.   althou£,L   the    individual  may  have    suf- 
fered no  iiiore    than  he   deserved  and   if  bot.Vi  eouiuit    sriininal  f(/^ 
SistBp    be  oh  iray  be   piii-d'shed,  . 


{e  }      CONTRIBUTORY  II£GLlGENCiio 
RiiI5<:  •-/■  UMr    po    IGoc      ".rnj.ictmerAt    for  tnurdero      '^^r-^  wounded' 
wounded  hi'c?.   brcthG:c.  who  ne^leated  to   e-are   for  hip  wound  and 
diedo     H£LDj,   defto    i-?   guilty  and  ti'.e  ne£;lae.'l;    or  disorJ.er  on 
the    part    of   th^    one    injured   does  not   excuse   tj-.e    crime o 

The   tOTit    in"  these    casey   is   -  is  the   defta.,   act   a   con'bri- 
bufcing  part    of   the    re&uj.tv      If   this    i-s    so   it  .'itakes   no  differ- 
en-se    that   the i^e   are    other   u&usesi   alsoo      The   question  ie   one    of 
eauoation  e~nd    it   must    he.  proven,  r.hat   the    injury   iriflicted   by 
the   drift  o    entered   Into   the   re?,ult  as    one    of  "i:-he    eau^eSo 

"■     Sr'.pposQ   A   iE  wounded  by  B   and  A'-'b  physic iar*  te3.l3  hini  to 
renain   in  the   hGU?;Q    or  th-^r^-?  wiX-1  be   danger j,   but  A  p,o3?!i   out 
ard,  diefi   frar.'  ••so.Xd  ami  t.h'r-  woundo     B   i®  guilty  o 

SuppoJ^e    A  iB   v?,Xig.iit.',y  worinded  by  B   arid   C,,   thinJrini;,  he   , 
has   sojca?.-    salve (,   :':=uhs   on  ^.Cu;B   poison  and  A  diego      B   is  not 
ST-'^ilfcy -ivJ'i  'that    eaao  bfcea^.^Ha  when  the   poi'son  is  pvit   on  the   In- 
jui--y  h::f\    '■?,  3.ged  tn   he   an  op^.x^a.ting   cau5?e  o         •  •        • 

nEQlHA  V  ?ICLIiANDf   po   164„        In-^i^ic^ant   for  x;jurd8r<,     X 
ra3  ymyXa±6.  by  deft,,   ?s;.c.  re'^Qi-'n^.d.  a   cut    on  his  finF;ero     Ke   re- 
fuGsd  on'  the   sArrii^o   of  a  phvnician  to  ha-ve  his   fincsr  am-puta--. 
.^cd.  rix-'d   in  conE!CfVj.::ncj::3   locfejaw    set    In  and  he   diedo     HELDj,    if 
thG.def.t.o   rilf\aiy  ar^d  ■;a•i■^>hcut   jusolficiation   ii-d:iiet'ed  the 
'ifOvU'Adj   ""j.lch  •.'.';-,rN    the;   ultio;,-:.te   cause    of  the   death j   deft,    is    ■ 
r.n11,ty;.  It.  •tt(als.e.s|  no  d.l£i.''er>ari©a  rrhether  ths-  wound  cau-se^i  "the. 


^ 


death  on  accoai;t.   of   the   la<::k    oi.    proper  treatment    or  -/ioto 

The  death  hero^  ■•ji-&t'   the    rets-alt   of  both  tht;   woui'id  sjad  the 
failure    to  anvputateo      And  deft  „  wafc;   reapongible  for  the  ^^-^e   - 
the  wound;    but  where    several   e-auses   result    in  death  any  one    • 
cause    c;an  be   he'id  respcnsiblo   and   it    is    simply  a  question  of 
fact  whether  the   a^st    of  the    defto   vjas   a   ecivtributing,  eause  and 
an  operutiiig  for^e   at    the   t.ims    of   the   death c 

R£GINA  V  DAT.LO?rAY,   po    lO'o.,        Indictment   for  xrianslaughter^ 
By   reason  of  ne&ligence   ai   driver   of  a   cart  o      Deft,,   wag   titans- 
ding  up   in  a   cai^t  he   v;as   driving, y   the    reiJniS   net   being  in  his 
handii  g"  when   a  little    child  ran  asroBti   the    road  arxl   firas  irnosked 
down  a:M  killed;    the    deft,   did  not    see    the    child  before   acci- 
dent o     HilLDj,    if   one,,   by  neglect   of  ordinary   oare   causee   the 
death   of   another,.,    it    ib  manvilaughtsr;    tio    if  the   defto    sould, 
by  ufiirjf^   t>ie    i-eine,.   have    :,aved  the   child;;  he    in   guilty j'    if  he 
could  not   he   .Is  not   guilty „     Verdict,   not   guilty c. 

Hers   the    death  happens    entirely   on.  ac^count    of  the   negli- 
gence-   of  the    vieejsased  and    it   vfould  not  have   irade   any  differ=- 
ence   v;he  the  r  dc-ft  ^   had   been  u-iinr,  ordina^-y   care    or  not;    there- 
fore  the   deff^;?;-,   nef.ligence    is   not    in  ariy  "way   a  .^ause    of  the    • 
death  3:ad    so  hi?    is  not    ^.^^iltyo      This   yase    shows  very  well   the 
proper  ',T?iy    ^o    treat    thsse   kind  of   ftaseSo 

■  RiCrlllA  V  KM.    p=    ICoo        iTLdictment   for  manslau.rhtero      The 
deft  3  vms    beinp,    baken  to    tlie    gtaiion   in  a  vehicle   belonging 
to  X  by    the    other  defto.    t:.e    servant    of  X.   vrtio  had  been  d5,r« 
ected    to   do    3o   by  Xc      The    serva.nt  Y^ras;   dri'vinr  at   a  furiouE     ■ 
rate   and  ran   over   a   child  roi?i,r    to   achoolo      FilLDj    contributory 
negligence    is   no   answer  to   a   ariridriaX  action;    arid   if   the   pri- 
gonere  were   oiriving  a'"    a  daiigerouj   pace    in  a   euJ.pably  negligefa 
mariTier  they   are   guilty, > 

'T'he   deft'-"^.,    act    is  here    oi:e    of   the    contributing   causes   of 
the    death   of   tiie    ulaild  and    therefore    it  jp^a-ka--?   no   difference    in 
a   crirainal   action  v/hether   the    ahiid  also    contr j.birted  to    its 
death    or   rioto 

SllI'.iIvLA.;^Yc      The    simple    question   in  these    cases   of   contri- 
butoi'y  negligence    is   v^rhether  deft'-g,    ast  has    contributed  to 
the    result.,   and   if    the    aot    of   the   defto    is   one    of  the   active 
causes    of   tiie    resuS.tj,    it  iria.kea   no  -difference    in  his   cr'ime 
whether  arry    one    else   has    contributed   or  not  o      The    question 
is    simply   one   of   causation  ani   if   the    deft>.   v;as    the    cause    of 
one    oi'   the    operating   causes   in  the   result,   he    ie   guilty;    and 
contributory  negligence   on   the    part    of  the    one    injux'ed  h-as   no 
effect    in  traking  av/ay  the    lu-iminality    of  tlie    deft's,,   aeto      The 
rule    is-  tnue    seen  to  be   entirely  di.fferent   from  that    in  Civil 
Aotiongj  26 


SECTION     ?OUPl, 

?i£C[  V  RXOI-iAaDSONs   po   loGu      inJ.1  c-.t:.,ari.t    for  "-.ir'-.v/a:,    x^ob- 
bery.      The    2  def1;^<-,    confront  ad  one   X~   •..'lio    -/aa  v;ai:;j'.n':  alonf; 
the    3ire8t   arid  asked  1:L..  how  i^.u??;-.  laoney  ..e  had;    one   of  the 
deftSo    then  turned  to    ;..o  av.'a:    with   no    5.ntent    to   robr,    but   the 
other  took    all  X  1-ado     'I'-.e   proseeut-ion  could  not   aisyeriairj; 
vrhici.  had   coiaiiit,-,  ed   the    robbery   and   3o  both  \7ere   acqu5.  :tedo 

Thit  ta^e  is  aixiple  and  clearo  One  of  th3  p£jrt3.0  3  is 
iniioccnt  arjd,  t>.,e  £.-0.11  iy  one  e.culd  nO'':.  of;;  dj.5 1-.  j.ag,uish*;d;  30 
both   necegBarily  1-^d    to   be   acquitted^ 

IRLaillA  V  S""X:iDALLy   Po   IGVc      Xndiyt;-.ent   iror  luan slaughter. 
The    2  deftSos  vhile    drlvi.nr,  in  separate   oarts   eneoura^ins,   eadi 
other    tc  di'- ive   at    a  dan£.erous  paee^   I'aj-i   over   and  killed  Xo 
FBLD,    it    is   ii.j..ateriaX  v;l\r-) -=•,;. er   one    or  both  rsj'i   o'f^v  X  for  both 
are    gui^.-Dy  s.i  principal;?:,      .u^ere    oriO   party  by  n6:^lir,snce  has 
contri.but.3d  to   the    loi.;-:-    of  .life  he    is   responsible ^   and   if  both 
the    part  ley   here   are    squaXly  ne£;li£,ej'it   and  contributing  both 
are    guiltyo 

The    acts   done   here    13    participated   Jn  by   boih  the   par- 
ties  and    30  bo  bh   are    £,ulltyo 

R£GINA  V  FAULTS  J   p^    170 -,      Indi.jtiuent    for  aienplauc^^iter. 
It   vfas    deft-s   duty   to  provide    for   the   ventilation  of   a  uine, 
vhich  i.e   nerleoted   to  dj    ai^.d    !;he    explosion   in  qu,estion  took 
place »      It   was   a3.so    ^\.o\mi    i^/.at    it   v/a  s   tiie    duty   of  a  person 
under  the    deft^    co    report    the   need  of  ventilationo      KilLDp    if 
by   ojiiuii"^  tln^i,   to   see    to   tiie    ventilation  deft^    ./a's   guilty  waa 
of  a  want    of   or>linsry  precaution,,    it    i?.   no   defence    that    othe578 
were   also   negligent    arsi   conti-ibateo",  to   tiie   re«uJ 


li-E. 


RjIGlIIA  V  DAVIS  5   p.    ?,71,      JhidictiTxent    for  .car ..slaughter. 
The   2  prisoner?  wen';    "--r    a   :;aop   and  asked  X^    th^e   deceased^   for 
an  apple o      X-'i^  wife    refused  a/id  .g.bu^iva  wci'ds   foilov/sd  and 
abusive   v/Ox'd:^   follov.'ed  and  later  a   general  figl::t«      X  was 
knocked  down  and  \.Xy.   ,]"^..w  bro.kenc.     ..'it    r.i;e  hospital   it  waa 
fo\i/id  necesaary   to  v/ire   hi's   .1a^.^'  ^.riX  he   died  urider  the    irifluenc 
of  the    ehloi'ofora.o     rlilLD,-,    if  tho    death   resuTited  from  the   use 
of   clalorof om^      it    sarjtot  affest    the    crl':iinal   responsibility 
of   the   prifo-vier,,      B-rt   ac    it    cou.ld  not   be    found,  cjut   which   one 
of  the   deftg,-,    inflj.cted  .t}*e   bio".-'-,    they  were   both  acquitted. 


To    constitute   a   ci'Lao    L^ei'e  laust   be    a   ci'Luinal  act,    and 
that   act   iiius';   be   done    in   a   certain   state    o£  i.iinJ.,   v/.ic.i  v/e 
call   the    C.'ii.iiiial    Intent  o      In  C^-i;.anal   Lav;   a  uian  ,  intends 

to   do  v/l.at   l.e   vai-.iri&ai'il,'    arid  kno'./in^l .'    does   and    i  .is    is  what 
is    called  Criuiirial    Iritent    iri  Ci'iiainal   Lav;;    it  ^aj^es   no   differ- 
ence   ./hai    the  i..otive    is    iT  /.e    iribend^    to   do  t.  e   act  5    anl   30 
Criminal   Intent    si'-ply  ir.eam   t'-e    intentional   doinr;  of   an  ac^. 
which   is    c^-iiaiualy    and   it    is   not   necessary    that    the    guilty 
one    should  even  know    ihat   ...is   s.ct    is   a   c^'iuanal   one  ^ 

Sj-iC^lOII      Olii;^ 
Intent   distinr^-.ished  froia  lotiveo 

?.£;:■:  V   ^HEPPA'-Bp    p<,    17'i„      lndict..ient    for  fot's^inr,  a 
receipt   v/ith    inten':    to   def--aad   the   ban]?    of  England,    and  also 
to   defraud  X,      X  £,ave  liioney    to  hia   bro^i.er  to  buy    ^toCii  v/ith, 
who   gave    it    to    the   prisoiier  fOx'  the    aaiae    purpose;    and   the 
prisonei-  gave    the    forred   receipt    in  retai-n,    but    .vith  no    in- 
tent   to   defraud  X;    there   was   no    3uch  person  as   the    na.;ie   for— 
gedo      H£LD,    the    aci    co-'.2.d  not    operate   as  a   fi-aud   on   the   bartk 
of  £/irland,    but   as    the    ii:,i:iediate   effect    of   the    act   -vag    the 
defraudinr    of   X  the   pi-isoncr  i,.ust    be    convicted   if  ;.e    caru-iot 
repay   the  ix.onevj 

T.-.e    defGo    interidc-d    to   ^let  ...orisy    ori  the    fory.ed   receipt 
althouj;-:  he    divi  riot    intend  to  harxi,  the    specific    individual   - 
X.      This    is  what    orinanal   intent  uietia.?    in  Lav/,    that   a  man  in- 
tends   to   do  v/hat   he   volurxtarily   doe'i,   wiiatever  his  laotive  niay 
have   been* 

REGIIJA  V   SHARPE;    p,    175 »        Deft,   under   a   pretense    of 
wis.;inr,   to   bury   his   fatbe^*   oboaiiied   the   key   to  a   b.iriel   grourjd 
and   ru.^.oved    the    body    of  yi-;  :::.other.,    wishing,    in  fact    to   take 
it    to  an.;t..er   pZacs   arid   our^    it   v/ith  his   father,     HELD,    al- 
thoa£      the  i.iOtive  v/e  3   £,ood    the   act    .vas  done   v/rongfuily   arid 
under  faisi;    p^'etenses ;.    and  rio   relationship   can  justify   the 
takiri-    of   a    coi^pse    f.'oni   a   ^j-ave  „ 

A  licerice    to   do    one    i -iri^   does   riot    preverit    a   person  from 
beint  a   trespasser   if  he   does   another,    and   the    £.ood  x^iotive- 
does    fiot    preveri:,    ari   act    dorj.e   vn'ori^fuliy   froiu   being,   a    crime. 

RESPUELICA  V   GALD'7i;LL,    p.    177.         Indictment    for  a  nui- 
sance   in  erecting,  a  v/hc-f   on  public   p^-opoi'tyo      Deft-,    offered  t 
to   p^'ove    that    the    sai^.e  'ffsi  beneficial,   to    the    publico      K£LD, 
such   evidence    ii    inaduissabXe ,.    bec;au-5i    if   true    iz   would  be   no 
juatif ication^ 


STATE   V   PRESNiiLL,    p.    17V ,      Iridlc;tii:3rrt    Tor    3911^:.^   !?pir- 
ituous   liquors   to   a   elave    c:orii?r-aj:'y  to  lav;o      Deft,    bslir.vod 
that   the    slave  wa=    buyi.ne  liquor  for  h;i3   u.a:3t&rc      H£LL„    tj-.e 
dtfto   acted  ab   hie   peril   in  dealing,  v;lth   tne    9Xave   and^   ai- 
thoup;!-:  liig  xuotive  u.b.y  efl*ewt   the   pi:.nishii.eyit .,    it   car^not;   p.^e^ent 
tl.e   act    froiu  bei'-'.c   a   ^>-io.latio2:.   ox    tj-.a   Law  ^ 

V/:-.en   the   a.tt2;   .tone    in  unlawful   and  vc?,ur<hr;-:-y    t^v^p.    -rr^uinal 
uiirid   ie    inferi-'ed  neceT!«ar*ily  from  the   acto 

RLTdOLDS   V  Uo   Soj    p,    179  o      Indirjta^cnt   for  \ilg.3.'y>Y  <,      The      ' 
que-^tion  v;as    -  v/hethsr   tho'^e    -/ho  nake   policai-Dy  a   part    of 
their  rt3li,Fion  are   excepted  froii  th.e    cpcratiori  of    the  laWo 
HilLD,    ^w&r-j  uari   ie   pre-i^ut.ieJ    t-j    ird:or..d  the   yi8ceg*£:ary   and  le- 
£,itixna:e   corxBequences   of  v/hat  he   l?riO^«;ijri,riy   dooe,    orj-d   ig/ior- 
ance    of    the   law  vi.ll  r-ot-   be    takei.i.  as  evident.je   fcjr  a   iac-./:  of 
crifiiinal    intent  ^ 

Stf^te  V  7rt\ite,  G4  N.  Ho,  -^Go  Tue  beating  of  a  Jru;::^  for 
a  religious  purpoise  it'  r.'.o  defence  for  a  cri'-ae  whe  je  it  i.:?  a-" 
gainst    the    lav   to   «o   beat   a   ^Iruia^ 

Uo  So  V  HATtI.iON;  p.  dSOo  ij/di^nniont  for  depo^itinc  i^i 
the  Po  Oo  an  obSRenee  publications  Defto  was  actuated  solely 
by  the  desire  to  iri;prc>re  se>aial  habits  and  t.aus  to  benefit 
the  hujiian  raueo  K£l.Dj  thi'-:  i'S  no  excsuse;  the  lavf -inaX int;  body 
and  not  the  individual  priv;cribe3  vihat  is  rif;-.;  and  prohibits 
wj^at  is  wrong,;  any  other  theory  ■st.riX-es  at  th^e  foundations  of 
any    government   by   law,-, 

SUl.H.iARY,      Intent'  X'i    the   voluntary    briu£,in^  about    of   oorx- 
■sequences    in  whir.h   there  iva.y   be   no  vrin^h   or  de3ire   farther  than 
the    voii-ntary   oojnc   of   t-;,e   a^'it  c      But    one    iru-sj'.\ds   to  do  I'-'hat  he 
voluritarily   doeBj,   arui   i.ntent  has   nothing  to  do  Virifch   ooJiSe--- 
quence?;    or  with    the   >:nov;led^-e   that    the   ast    is  \7rongi    thus  •   the 
motive    of   the    act    ie   entirely    imo'iaterial  , 


SPECIFIC    iNTflHTo 

DOEE'S   CAof.,,    po    151o        Indictroent    for  burglar-y  with 
a  felonious    int.ent    to   kill   «.iAd   destroy  n   horgao      The   iior&e  was 
have    r-oas.  a   race   and   the    priijoner  ^.iut    the    «inerf=i   of  hi^  fore- 
leg to    prevent  hi.y   running,,,    in   conyequenee    of   ■vhi'Sh  hc>  died© 
HULD,    deft  a   xiiu-it   be    a?;  quit  ted   on    this   charg.e    if  hie    intention 
on  breaking   in  vn's   not    to  ]<ill   the  hor-ie   but    ordy    to   prevent 
his   ruriTiing;    if   go   the    entering  wae   only   a  trespass, 
Def  t  o   v;as    afterv^ard   indietel  or'Aer   a   statute   for  killing  the 
horse   and  \ra.-^    coi^viooedo 


'Ye  must   distiriguish   between  a   f^enera.1   eriruinal   intent   a'ndX^ 
a   specific    criminal    iritento      '^'iif-i   t.;r'UuinaX   act   It-:   whi^h  detto 
wa3   indicted  at    fir -it  V7a>.   .for  ^onteriri^,  the    Ktabla  v;itb.  intent 
to  kiU.    the  horse;    but-  he   d.l'J.  riC.-;'.   sntar  ---Tith  th.it   interih   but 
with  another    intent,.   a>id  all  must   go  togather  as;   the    intent, 
here    is   part    of  the  aat    tc  raJ^e  up  the   crime;    for  the   cr-jjois   of 
burglary   implies  a   Bpecifi'S    in'tent   Ivke   Boina    other-  irrirtiaaj,   tiod 
a   general    intent    iu   not    enougho      Deft  a  j   howe'-rerj,   hai  the   gen- 
eral   intent    to  l>ill   the  hore^:;    at    the   ti»ne  h.s    im'lieited  ths 
wound  for  he   voluntarily   ga-ve   an   injury  from  whi/s]:;.  the  hcrac 
died;    so  he  was  aftervTai^d   ino.ieted  for  .killing  the  horse   ar^d 
convictedo     ^iTiiere   c.   ttpecific    intent    is  'Lopliedj.    it    in  pax't   oS* 
the   act    and  nuist    be    specifically   pro'<redo      So    if   it    i?   a  iSrinie 
to   shoot  at   a  hcree  with   intent   to   kiULl.    it-   Dius-t    be   rireven 
that   deft^    intended  to  kill  at;   the   tme  he    vshot;    but    if  the 
firiirie    is  r^ierely  to  kill   this  horae,,-  the   genex^a.l  «rijj).xnal   intent 
would  be    inferred  from  the   k:UJ,ingo 


V 


R£X  V  BOYC£j    p,    182 -^        Xnd.i.-jtuve;nb   for  .rnaiD-iing  v/ith   intent 
to  niurder,  laaiiris,   and  diwablo,      Deft„   broko    into   a   shop  and  was 
there   diecoved  by  a   night-\(yatc-h'uan  rhom  he   attacked  ^ari.d   then 
ran  away^    ordering  hinx  to   sit    dtill,      KELDj,    Che   def t »    only   ire' 
tended  tc   produce    a   temporal- y   disability   till  he    c!Ould   yKoa-pe- 
ard.   althougii   this    is   a   cjrlrii;-^ .,    ;.t    is   not   the    crime    of  .(naionirig 
with   intent   to   kil-l^    ai;.d   eg   d.eft,    cariiiot   be    convieted  ^ar-dex- 
th  is    i ridi c tnis nt  <> 

Deft,    could  here   be   convicied  of   the   crime    of  maimingj, 
for  the    general    intent   v/ouM  be    irif erred-  fraai  that   act »   bxit  he 
did  not   have    the    gpecJfic    intent    tc  ki3J. o 

R£X  V  KELLY,    po   182o        Indictment    for  maliciougly  '.V:illirjs.g 
a  horse  o      Deftc    fired  st   X  but   killed  hisi  horse    insteado 
HELD,   under  the    statiite    this   offence  must    be   proven  to  have 
been  done  maliciously  and  nvilice    jjnpliee    inte.rition;    the   proof 
therefore   negatives   any   intent iori    of  .killing  the  hoi'-se,-, 

Killing  a  horse  was  not  a  lirirne  but  rtvaiiiiioutly  3rilling 
a  horse  was;  eo  the  specif i-c-  iyitent  had  tc-  hp.  prove?x  in  this 
case   and    it   v/as   not    preaer-.t  -. 

COmiOfJlVEALTH   V  H£RSii;v'^    Po    18-3,,        Motion   i::..  arrest    of 
judgement   for   on'iiiitting  to  av^-er   that   defto*    irx  giving  poison 
to   the   deceaiiedy    did   it  with   ^x.-.    intent   to  .killlo     H.flLD-,    if  a 
particular    intention   is  neoeHKary  to  an  offence ^    or  a   sriminal 
act    is   attempted  but   not   acooa:iplishe-d.  aarj.d  only  the   evi-l   intent 
cari  be  p-jcriishedg   the    iritent  mxx'&t   be   alleged,  and   proven^     Bvit 
if  the    offence    congists    in  the   doin^g   of   a   crijnirial   autp    the 
law    implies   the    intent   from  th^^   acst , 

30  ) 


\^ 


Genei*aJ,   eriaiiixal   intent    Is   the  mere  volujrita.i*y  doing-  or  six 
act  wViic-ii   ip    criminal  ar^d  thie    case    shows   that    general  intend 
need  not  ber  statb'd  in  fib's   indActme-at    or  provezij   vrhile   spe-ctfic 
inteiit  must   be   expressly  a-llegc-d  and  praven  as  part   c:f  th« 
indictaient;    so   in  an   irtdictoienfe   for  murder g  which,   requires  ma- 
id oe  3.£orethougb.t  5    it    l^i   not    sufficient- to -say    that.  A  kJXled    « 
Bo    -B\it    in  eveiY   indictment   at    Comnon  La^A^   there  nust  be   an -al- 
legation that   the  acii.  '•sa^  -dons   u.nlavrf;'u.'',ly ^    cnd-we  maj   look  to> 
this  to    in«53jade  iihe   intents      The   prosecution  ne-ed  not  bring  in 
ai:iy  special  ev-idene-e   to   pro'^-K  this   generals'  intent ^   unless  it 
is   disputed  by  evia&BCo   brought   in  "oy  deft'^ 

SlillMARYo      Specific    intent    is   a  pHX'txcAxXa.r  state   of  ro.ind 
in  which   the   fact    is    dj^ney    br-nc.   it    is'  part    of-  bh<2-   eriraina}.   attit 
an.d  uct    rfJ  tbe    e;e».e-Fal  -Asntai   stote-.;      Xt    is  iieKfj-ex*  p-Tfesumed;, 
but   alwa^ys   al.3>e^;:ed'-in.  th«?    indi.cf*ment.  <,.  which  i-n  not   requ.ix»ed 
for   general   intent ^      A-  geod  .i:ilLT-stration  of  tl-^   difference- is 
seen  -in-Dobb'-'s    Sase^   po    131.,    - 


SECTION   'iTIRKB. 

NBGLIGENCSa 

It  moy   eithei*  be   sa»id   that  negli.gen^'-e  m3.y  take   tlm  piace^^ 
of   goner^-al   cpiininal    intent    or  that    it    is   one   of  the   el^aments- 
of   it,-   One   of'  three   things    is   nee-ssiiarj  for   a  criiBa -besides 
the   act;    first,    that   tJae   act   be    intent  ionaXly  done ; -or -second, 
do-;aa  negligently.:;    or  thirdly,    done  neither   intent ionaXly-nor  - 
negligently^  bi^t  ds    the   result    of   one   of   the   acts  ^-7hidi    a  jsai}^ 
does   a-fc  hisperiro  -  V 

(a)      Negligent   acts    of   Cowraission., 

ThsiTt;  avut^t   be    a  dist i,Gi3tiQn  rc^^'s^le   b-itweon  negXigent   acts 
of   ccinxxiis-^lon  and- negJ.igerAt   acts   of   orffv.ission;    as    if  A  negli- 
gently  th,.ri7VYs   a   stone  vrhich  iiits  B,    there    is   a  positive   act  en 
A^s   part;^   while    if  A  f^ontracted  -v/ith  B   to  provem.   a   stone  hit- 
ting 0   and  -it -does  hit   C   throvugh   A's  ne-glXgeRfje  s,    it    is  hi-s   om^ 
mlsBi.ort  \yhii.5h   riO/.-ne,':;  ts  bjjr.  with   th.e   act/  -  ... 

'  rd^C^INA  V  CHAMB.fr.?J,,.r\.rN,  Pc  187,,  Ind..iotraent  for  man^sisvugfe- 
terc  Derto  was  a  quack  do-ctcr  am  gave  X  an  -ars-enicai  cint-  > 
m©nt  i.'o-use,  Ai^hinh  fiatxsed  her  dea-th  by  being  absorbed  into  the 
syp+.eodo  Deftc  merely  -cold/ her  to  rub  '..n -iixe  ointment  „  ajid  shs 
us«d  so  mueJx  that  ahe  died^.  -HELD,  if  deft „ -adrainis-ifcfr^ed  t-h®  - 
^li^senic  \7ithout .  J^nomng  er-taJring  paui.s-to  tin^.  out  'icb^t  its 
e.tfcict  \vould  be  J  or  IrKO'arijr^.g  this  »  he  gave  it  to  his  patient 
'ivitiiout   &.d.ftqua,t.e   direct  j.ans    as  to   its  iTsej    ther-e  -s^ouad  be 


•^ 


m 


Civally   a   cei'tain  ai.'tificial   stajruiard   can  be    sti   up   foi-  a 
man's    to   corifocLi  to    bub    cri^irially    it    depends    on   eacn  raan's 
ov/n  i.,irid.      So   tl,e   rule    is    il^at   one    is    only   criminally  liable 
if  he  does    sodretiiinf;  v/hich  'r.e  hii::iself  ou^^ht    to  have  knowri  bet>- 
te:^'  than  to  do.      In  ne£,li£,ent   dauiar^e   a  man  is   not   punisiied  for 
the  neg,li£,ence   but   for   the   damage  he   does,    and  if  his   ne£,li^^en 
ce   does   no   dainat^e  he    canriot   be   piiriished.      It    is   a   question  of 
fact   for  the   jury  as    io  ivhat    is    criaiinal  na£,li£,ence    in   eacn 
case,    and  so   an   ignorant  uan  would  £,et   off  easier   tnan  -ari   in- 
telligent   one.      '^he    crucial   tes";    is   to   find  out    if  d-oft.   has  • 
has   reason   to   knou   that   wl^t  he   si   doin^^   is    careless, 

Ril'.ll^IA  V   SALitON,    p.    1C9.         Iridlctraent    for  laanslau^^hter. 
The    tl.r'ee    defis.    v/ent    into   a   field   for   rifle    practice,    arui, 
v.'i.ile   firing  at    the   target,    ojie   of   the  shots  v/ent   across    into 
a  nei{^..borin::   orchard  and  killed  a  boy.      f-ULD,    all   three   are 
£,uilty;    because    if   one   does   a    thin^;^  dan£,erous    in   itself  and 
without    talking,  proper  precautions    it    is   a   crL.iinal  act    if   in- 
jury  is   done;    and  also,    as  all   ai.*e   enj^a^^ed  in  a   coLsmon  pui'-s-iit 
each    is   answerable    for   the    others. 

All   three   are   £,uiity  here   because    all   are   eni,.  £ed  in  a 
cOiijaion  enteiT^rise,      In   tl::is    case    it    is   not   necessary   to   sliow 
any   duty  to    the   boy   because    it    is   a    ri£;xt    of  the   boy   by   lav/ 
not    to   be    shot;    this   shov/s    the   difference   betv/een  neGli£,<^nt 
acts   of   co-j..iBS  ion  and  oinuiss  ion.      If   there   is  a   prize   fight 
arid  one    of   the    contestants    is   killed,    it   has   been  held    that 
every    one    of   the  -spectators    is    c'^ilty    of  homocide,    as    it    is    a 
coiji.ion  enterprise, 

SUIlIA?.y.        Net,lii,si'ice    is   not   a   criairial   act    in  itself  but 
it    is   the    intent   part   of  a   crime,    and  is    the  manner  in  which 
the   act    is   done.      In  every   case    tr.ere  must   be   shown   -  first, 
an  injury  caused  by  deft,;    second,    such   a  decree    of  neg^ligence 
that'  deft,    is    responsible.      The   criminal  lav/  deals  with   the  ' 
defto    only  and  hence    it  must   be    shown   -  third,    ti-^t    the   deft, 
himself   oujj.t   to  have  Knov/n  his   act   v/as   ne ^1  i goi t ,    and  he    is 
not    to  measured  by    tl^e    standard  of  an  ordiriarily  prudent  man 
aa    in  torts. 


(b  }     Ne^li{^ent   acts    of  Oiii^iission, 

liilX  V  F'^JEND,    p,    190.         Indictment    for  a  misdemearior,    for 
ne£;iectinr    to  provide   X,    an  apprentice   foi;rteen  years   old,     ' 
with    t::.e   necessaries   of  life,    so    that  her  health  v/as   injured, 
K£LD,    t  .e   refusing   to  provide    the  necessaries   of  life    to   any 
ira'an:    of   tender  years   lUiable    to   take    care   of    itself,   whom 

32 


a  man   is   obliged,  by  du'^y   or   coi''.t-'ac;r.   tc  provide  for,,    v.o  as  to 
injm'e    ita   bealM;;  .^    i:s   a^A   i».di stable    offence- 

Ij-    cra-ijov;    0*'  '■■^.in    ^  M't    •■  :i.c*tj    ■  ■      •!-"  i^nBioTi    •■  a   outy  to 
ths   daysEi^sd  nvu^i    bo    Bbcv/ri:     •/h.i^efor-e    in   thlf:    case    it  b^d  to 
be   proven   fchat.    the   deft,,,   va-s  ■■rridar  ;:.  duty  to    •si-]jr/ly   lood  and  i 
that    ths   deati":  v/h'j    dii'ectly   caiJ^serJ    by  ::.±n  ri-^rlect „      Tliorefore 
if   the    '-jhill  had    arjy   othei    v/ay    of   ge-fctinj;,  fooO...    tho   d^.-ath 
would  y>.^jh    -;- -/-G   ]>e.^7j   caused  by   def^';.,    ne^Lei;-".    arid  he   v/o^ild  not 
ha<'-e    uPi^ri   guilty  c      T>-.e   di  ty  lau'  •   -ba    -stated   .'.n   *hp    irjo'.i -of merit 
ar.;"?    prov';]'..   i.n  a':^a";;;-    of   t'l.'s   f:iI;d^ 

T^JiCrlilA   %'■  LOWP. ,    po    192-         .r.jjdlvtroerit    for  r;:ari^lattt~^at.3ro 
Deft      wa-.    .   ■;  "  r. 'ed   to  i^var^age   ari  ani-iri^,    e>ira^ea    irt  dvaw:??!?,  up 
CiinHr,:!   frc,.:    a    ;. oal   pit^      He  y:erit   av^ay   ieavirif;,    ^he    cnglrie    in 
C5l:a"r.a    c"'^   »  'l^'-'y  '"^horri  he   .^new  wan    i£;riorant    of    it*:    opex-j.t ion., 
arj..    o.n   ooviSieq^erice   a  tiiiner  wa^:   killed   by   an  acc-idp-nt  vhich     ' 
dftft,    o';.-.Xd  hava   prs-rented   if  he  had.  beer...   i.herf:.,      H.SJ/D,,    defto 
i'K   guilty   hecuuse    -f-he    death    o^'^iurrev'.    on  accou.nt    of   d.-'re;^.,   ns- 
gi.nct    of   d-tyc 

TlUi    incouipetont   poTscn  doac!   the   killxjig  but   deft,,    iu 
respohi^ible   for   such  a  per'tjcri    ;,at'iri£-.  at    the   .ciachinery  -.and   it 
is   rei',];~!  e  ?.Hly  n'?r;lirent    fcx'  deft.,    to   put   him   in   nhar^;.'-.; 

Ri](-INA   V   SMITH;    p.    192c         IndicLnient    for  jDanslauH:itero 
Def '■  ,    v:3.c    erAolcyed  by  the    o^mer   of   a   trarnv/ay  vdiich   crossed  a 
high,  ay  to   ^i  ye  -.rarnin^,  whon  any    ■.r.-.ck    croayod   tye    roadj,    hxi':. 
there-  Mte.^.   r...c   duty   h/'/fyr-SH -■    rra   t,l..-e    e-iV'ner  to   keep  a  v/.atchTian 
the:'.! ,      y  v-as   h.j.lled    v/h\'  .     " .  'h  ,    ';at;    a.way   fi-oi.i  hi'S   pcsi  ^ 
HilLD,    th?:ra  -^3azi  no   dxifcy   o/i  the   tra-^r-vay   ottnar  tc;   jjaep   a  i^rrt  +  oh- 
man,   arid  §o    nhe    deft":;,    r.e /'."    •■^:'-.;:    :  ■■   ^.ot    such    a   breach   of 
duty   as    to   make   hiirn  'g^'ii^.t:  . 

if   tho    ;^a"ie;:.i." ,       .     ".       '30   tr.'.ova    lon^    Bnc^Uirh  to   let   the 
Public    eiKp-^rst   prc^.. ^i. ..oij. .    Beale   thi.ik^^   iief t  c    ehoula  iiave  been 
liable,    but    if  thi^  vd.;?    orjly   the   first    day   th«re  vrouJLd  be   no 
Arar.y   beriause      j   ■;:s   not    iiuiiiced.   the    Pablir:   to    tnjiat   hii;.   i-mXess 
he   ■^;■?va■rtiRe>;    xz :    ??or  then  the    direr-t    eau?e  ■'/I'oiild  ha/ve   oeen 
t]ia   .^.(;('n-;aijed^  i;  negligence.      But   ay   "che    case    stands   beale   does 
not    think    ?.':■   difiers   froxr.  the   preneedint;  caee   ay>.d  that    the 
pa-Cions   hlTlad  were    ^.n  both   oapeK    vvero  uiider  the    oa:-e    of  and 
had  a   rifht    to   dapend    on  the   def^, -.      Y.'e  muat    dist  inr;xiish  this 
sriuiinal  /i  ability  from   ci-v-il   liability   and   jn  both    caseg   the 
breach   of   a  private    ;;ori.tract  haB   resulted    ir.   a   dLoath  a;.i.d  the 
pub  i. i.  r;   e o*upla,  ine d .. 

4 

■  RiiaXNA.  V  NIOHC'bLSp    r .    19?.        Indi.^ttasn;;   for  j5iaj-s:iau£hter, 
Do^x'to    on  -Dhe   death   of  ht^  r  daughter   tool   charge   of  her    i>:fajat 

33 


cliildi,  which  Eho  left  during  the  tioat  of  every  day  in  charge 
of  a  boy  of  nine  years  .  vhile  she  way  away  from  home  at  woi-k 
and  the  infant  died  of  starvation,   I!£LD,  if  one  has  chosen 
to  talic  charj;,e  of  a  helpless  per-eon  and  let  the  same  die 
throur^i  wicked  nef^li^ence  .j,  he  13  guilty  of  manslaugliter.   But 
the  riQ£,llfierice   muet  be  ^uch,  as  to  show  a  v/icked  n.ind  in  the 
sorxse  of  recklessness,  and  to  decide  this  the  state  and 'condi- 
tion of  the  parsons  concerried  must  be  taken  into  account. 
Verdict,  not  guilty. 

This  is  not  the  old  question  of  degrees  of  negligence, 
but  it  is  not  necefjsary  that  because  a  duty  if  neglected,  one 
is  criraina3.1y  liable;  there  must  be  a  crimiriai  'State  of  mirxd, 
a  reckless  neglect  aj'id  not  mere  thouglitlessnese  o 

R£GI!-IA  V  DO\''n'I.ES  ,,  po  195.    Di ceased  was  the  two  year  old 
child  of  defto  and  vrtien  it  became  sick  it  was  not  -given  any 
medical  treatment,  contrary  to  a  statute ,  but  deft,  treated  it 
in  good  faith  acc-ording  to  tl:e  doctrines  of  a  peculiar  sect  to 
which  he  belongedo   ITELD^  there  xrsM   a  statute  making  it  an 
offence  for  a  parent  wilfully  to  neglect  to  provide  medical 
aid  to  his  children.-   Thei^e  was  th/us  8lii  absolute  and  positive 
drty  and  it  makes  no  differiice  about  the  def t '-s  conscierieiouB 
opinions  or  whether  the  motive  was  good  or  bad» 

At  Comu.on  Lav/'  a  bina  fide  belief  that  this  was  the  best 
means  for  the  child's  health  would  preclude  the  idea  of  crim- 
iiial  negligence  o   But  the  statute  imposes  an  absolute  duty  ard. 
he  neglects  it  ?t  j^is  peril;  he  is  not  liable  bee^ause  he  in- 
tends to  injure  the  childj,  or  because  of  criminal  negligence, 
but  becavise  he  does  not  perfoiTa  an  absolute  duty  laid  down  by 
statute  0 

RilGINA  V  INoTAN^  p^  19S  ,    Indictment  for  manslaugliter, 
Defto  3.ived  with  and  was  s"->.pported  by  the  deceased,  who  be- 
came illj  arid  from  neglect  nf  deft,  her  death  was  mucl-;  accel- 
trated.j   HELDj  as  defto  lived  with  deceased  and  as  she  was -the 
only  soUx^oe  through  which  food  and  medical  assistance  co^'oid  be 
obtained,  there  vas  a  coirraon  law  duty-  imposed  upon  her,  and 
not  having  performed  it  she  is  guilty „ 

In  saseB  of  this  kind  it  is  a  question  of  fact  whe-ther 
a  lega.l  obligation  has  not  beer>  tacitly  assumed  by  defto   Arxd 
no  doubt  here  it  hae ^   There  must  be  a  legal  duty  however;  as 
for  instarice  a  p-3s;:6i"  by  or.>  the  -r.treet  would  not  be  obliged  to 
provide  assistance  for  a  ma.n  he  saw  dying  from  want  of  food 
on  a  do-or  stepo 

Ho  Cv  P=j  425  -  A  later  caae  ^  agreeirig  -with  Regina  v  Instan,, 

34 


SuiiTiiiary ,      In   these    cases   there  must   be    shown:-  first    that 
there  was  a  duty  which  the   defto    ov/s   t-o  the   plf,    either  by 
a   contractual   relation   or  public   ri£;l-.to      Secorrd.   that    deftc 
omraitted  to   do  his  duty   and  an   injury   resulted,,      Third  that 
there  was   ne^li^ence    of   a  wanton    ji:   .vicked  kindr.      The    negli- 
gence  by   Gori-unon  Lav/  must   be   gross    or  v/iiiked^    but   hy   statute  ' 
an  abaoliite   degree    of   care  laay  be   required   -  Kegina   v  Dov/neso 
The   duty  nay  be    one   by   Cor.'iiion  Lav/,    or  by    implication  arir.'.'.ng 
froiu  the   parti  cellar   circurr,3tances    of  the    case    -  Rei^ina   v 
Instan» 


SECTION     POUR,      COIISTRUGTiVi:   IMT£nT. 

( a  )      3e  ne  i-al    1  nt  e  i-it  » 

ANONo,  po  201,    A  struck  at  2   with  some  keys,  v.'hieh  by 
the  force  of  the  blov/  flev;  out  of  his  hand  and  put  out  the 
eye  of  C  >  HELD,  this  -is  mayhem  because  there  vas  at  the  be- 
ginriing  an  evil  inten":. 

This  is  different  from  the  general  intent  to  do  v/hat  '.7aB 
done,  but  deftc  intended  to  do  a  criminal  act  and  did  do  one; 
so  h"  ?  3  p^Jinished  as  the  intent  to  comiait  -one  crime  can  be 
carried  over   for  the  comjaission  of  another,,   Of  course  the-re 
was  no  specific  intent  here  and  none  is  required  for  mahem, 

RxIX  V  ELAOa^AM,  p,  202.   Deft,  assaulted  a  woman  with 
intent  to  corrciit  rape  and  sl;e  v/ithout  dei.iand  offered  hiin  money 
which  he  took.  HELD,  it  is  robbery  for  th-e  money  was  goven 
up  involuTitarily  and  by  taking  it  the  defto  took  advantage  of 
his  felonious  conduct. 

Robbery  differs  froi.i  larceny  in  requiririg  the  uvie  of 
force  which  was  present,  althougli  he  did  not  at  first  use  it 
for  the  purpose  of  robbe.-y.   The  intent  is  also  present  be- 
cause he  did  interxd  to  do  a  Ci'iir»inal  a-ct  and  the  money  v/as  ob- 
tained against  the  will  of  the  woman.,   A  simpler  case  is 
where  a  man  comi:ats  an  assault  merely  for  the  purpose  of  an 
assault  but  in  the  couree  of  it,  for  the  purpose  of  getting 
money, 

r  t  0 

RjBGIIIA  V  BRUCE,  p,  202,  Indictment  for  manslaugiitero 
Deft,  was  dinink  and  in  a  playful  v/restling  iaatch  reeled  agairis 
a  woman  and  killed  here   HELD,  the  wrestling  was  done  with  the 
consent  of  both  parties  eiigaged  in  it,  and  so  there  was  no  as- 
sault and  no  illegality;  therefore  it  is  in  the  eye  of  the 
law  an  accident, 

35 


If  par^ioB  wiei-   to    Iridiilj-e    in  eoarse   play   it    is   no  crime 

if  both   consent p   bnt    i.t    I'i  a  point    of  fact    in  each  case  where 
sport   leaves   off  and  (griruO  be^^inso      The   deeieion  practically 
i3  that    if  no  aswault    ia   cocnoiittedp    one    ig  not   chargeable   for 
an  accidsrit   arlej^rst  froin  yprrt .    as   th'=;vk.'i   As  no  erlrainal   intent 
to  be   carried  avero 

REGINA  V  PHANKIkCN,    po    2jj3o        - 

Indictment   for  mantjlVau^h-f-.f^r,     T>eft.,   picked  up  a  large 
box  from  a   refregh^aent-    stolCi.   on  the    pORr  anc   wantonly  threw   it 
iri  the   Sea^  whsre    in   Btru.sl^  X  v/ho  wats   e",7iniT.in£;  and  killed  him* 
KiHtDj    the    case   reeted  upon  the    ri-ound  of  negligence   or\  the  * 
part   of  the  deft,    and  the   oue->?t-.on  nm^t   be   left   to  the  jurye 
Vei-dictj   £i\iltyo 

This   case  vras   not   decided   on  t-he   /-rourui  of   intent  but   on 
the   pvound   of  n3sH£fi"ice„   for  the   taking  of  the   box  wao  simply 
a   tort   and  ci-iminal   intent   eannot  be    carried   over  frKJci  an   in- 
tent   to   carrrtiit   a  mere   civil  wrong, c      Even   if  the   deft «   had  Bto- 
lejA  the  box   5.t  ^jou^aI  not   have   eupplied  the    intent  here  unless  ■ 
he   threv   it   cverbogrd  while    In  the   direct   ayt   of   com'iiittine  a 
larceny  or  eec^aping  from   ?t;    but    if  the  'theft  was   completely 
cocLTvittfjd  the   two   could  not    be    e.onnevstedc 

00?,0.!OI^;?MLTH   V  ADAMS,   po    204,     Assault   arxd  battery o     Deft 
Tshile  driving  at   a   rate   piThibitO'i  by  a   city   ordinance  knocked 
dovm  A   on  the    etreeto      'i'h..    court    ruled  that   the    intent   to 
violate   the   ordinance   ftu^.pllsd  the    int-ent   neeeusary  to   sus- 
tain the   f;har[,e    of  assault   and  ba^,  bery.j     Hi^LD,    the   ruling   is 
wronga      If  the   act   dcna    ic  msi-ely  naluai  prohibitum,   there   is 
no  pvUiishment   for  an   i2>jury  arislr-g  froia  it    cor.initted  by  a 
miefortvine    or  a  misi-al-e. 

The   fa'?t   driving  vras  uai?   a    i;ri...e   regardless    of   intent, 
and  the   caue    :'s   aot   puL-    on  the   ground   of  negligence  and  so  we 
must   aeevime   def t  u  v/as  not   driving  at   a   negligently  fasi   rate* 
The    intent   to  be    carried  over  rr-uvjt  be    iutih  33  the   law   regards 
as   purdijhable;    but   crns    r.  :otutory  ercinieSi   like   this   one  j' may 
be   committed  although  a  m^.r/.-'s  ni:i:rid   iw  per'feetly   iniiocento     Tld 
case   does  not  lay   down  a   Ixard   rule   that    constructive    intent 
eam^ot   be   found  fran  an   intent   to  break  a   statute ,    but   it    only 
mean-,   that    if  the    acXe   evil   in  the  act    in  because    it    13  agains 
a  statute 3    it  tjIIx  not    supply  the    intent;    but    if  the  act   pro- 
hibited is   itself   evil  and   if  there    is  actual   intent   or  neglir* 
genie  apart   frora  the   statute    it  will  give   cjanetructive    intent* 
A  broad  distinction  cannot   be  3aid  dovrn,   but  most   of  this  kind, 
of   offences   are   violations   c.f  nuriicipal  ordinances  Trher-e   the 
offence    ie  i.iade   a    crime   v^ithout   the   nece-ssity   of  a   crjjuinal 
intent   nece-s^ary    to  a   ccixxaon  law   crime;    and  so   it    carmot  b«. 
carried  overo 

36 


t-- 


-  COi.ILIOIIWilALT;:  v  !..  I.'!!:,  p.  20 'Z .         l/iu.ic':..ien":  for  murder'. 
Deft,  atte.vipted.  to  shoot  herself,  when  X  "^eizeJ.-  her,  and  in 
the  struj^rie  vvliich  ensued  v;as  accidentally  shot,   HELD,  - 
suicide  ia  an  unlawful  act  and  so  deft,  had  a  ri;:ht  to  inter- 
fere; and  ariv  person j  who  iii  doin^;,  an  act  which  is  crirainal,  ■ 
kills  another  thouf^i  accidentally,  is  giAilty  of  criminal  hoao- 
cide  and  at  least  of  uanslauLi.ter. 

Suicide  is  a  crime  thour^-.  from  the  circvunstances  of  the 
case  it  cardiot  be  punished.  Therefore  it  supplies  an  intent 
to  b'j  co.rriod  over  and  the  case  is  clear» 

S UI^jUvIARY u   A  crL/iinal  act  combined  v/ith  a  crimirial  state 
of  mind  completes  a  cx-iiiie,  althourh  the  intent  of  deft,  \7as 
directed  to  that  particular  act;  but  the  act  oririnally  inten- 
ded must  be  a  crime.   So  if  inji;r:.'  results  by  accident  from 
a  sport  not  ilie.^al  there  can  be  no  constructive  intent  -  Re- 
£ina  V  Erucso   Arid  vfhere  there  is  an  intent  t-o  a  mere  civil 
".vronr  the  case  is  3ii-iiS.ar  -  Rer.ina  v  FrarJclin,   Also  the  act 
Uiust  be  malLim  in  se  and  not  merely  malum  prohibitui.i  -  Regiria 
V  Adams . 


(b)   COnSTnUGTIVi.   3Pi;CIPi:   IIITJLIIT. 


Supplying  specific  i/iterit  is  a  much  narrower  field  than 
Bupplyinr,  general  criminal  intent.   General  criminal  intent 
can  be  supplied  from  any  other  criminal  intent,  but  specific 
intent  can  -oiily  be  implied  from  an  intent  to  do  a  precisely 
similar  act , 

HALuG  ..  P^C.-  569,   Arson  must  be  a  wilfull  arid  malicious 
burning 0   So  if  A  shoot  at  the  cattle  of  'B  and  the  fire  there- 
of sets  a  house  on  fire  this  is  not  arson.   But  if  A  intend 
to  burri  the  house  of  E>  arid  in  setting,  fire  to  it  burri  the 
house  of  C.  althou£/;  E's  es-aapes  by  some  accident ,  and  A  did 
not  int4nd  to  burri  the  house  of  C,  in  lav/  at  is  arson  and  the 
malicious  and  wilfuli  burnirig  of  C  '  s  house. 

In  neither  oJ  the  above  cases  does  the  actual  specific 
intent  to  burn  C's  house  exist,  but  in  the  latter  it  can  be 
supplied  arid  carried  over;  that  is  specific  intent  cari  be 
carried  over  only  whe-n  there  is  originally  an  intent  to  do  a 
precisely  similar  act, 

GORE'S  GASiH,  p.  209,    A  put  poisori  in  medecine  which  X 
had  had  a  p^ysiciajri  prescribeo      .  .  Later  X  arid  Y  ate  of  it 
and  became  ill;  and  the  apothe^cary  to  show  that  the  pre  scrip— 

37 


/.-- 


IC     9 '.- 


tion  had.  been  careful3.y   filled  aie    of   it   also   and  died  fi-'oca 
the   poison.      Hi^LD,    A  vira?5    guilty  of  rnudder  because    the  -law   con- 
joins  the  raurderous    intent   with   the   event   which  ensuedo 

\Vl-i.en  one   prepares  with   felonious    intent    to  kill  one  man 
and  ariother   is   killed,   he    is   guilty   of   the  murder  of  the    sec- 
ond,   for  he    is   as    great    an  offend-er  as   if  his    intent  against  ■ 
the    first   person  had   taken  effect, 

RLGIITA  V  PiI.:3LlT0n,    p.    210.        Indictruent   for  maliciously      "^ 
doing  dainage    to  c  window    contaary   to   statute.      Deft,   having 
been  engaged   in  a   straet    figl'.t   went   across   the    street   and 
threw   a    stone   at   his  adversaries,    but    it    stinick    the  v/indo"w   irr- 
stead,      HULD,    Deft,    is   not    guilty   for   to   render  him  liable  un- 
der  the    statute    it  must   be    shown   that    tr;e   act  was   done   actual- 
ly   or  constructively  with  a  malieious    intent  v/hich   the  facts    ■ 
show  was   not   present. 

'2ov   coiisti-uct  ive   specific-  i/itent    that    special  kind  of 
iiitent    or  malice  must   be   foiuido      3o   if  deft,    threw   at   a  horae 
and  hit   tr^e   v/ij-xdow   the    intent   would  be    there    to  maliciously 
inju're   personal  property   and  that    is  what    this   statute   pro- 
hibited;   but    if   the    statute   had  been   confined  to  v/-indows, 
throwing  at   a  horse  v/oiild  not  have   been   sufficient  c      The   court 
says   that    if  deft,    had  beeji  grossly  negligent    in   tnrov;ing  the 
stone    in  that    direction,    knov/ir^g   the  window  was  there,   he 
Vifould  l^ave    beei'i  guilty;    but    that    is   doubtful   as  malicious    in- 
tent  was  necessary  by   statute   and  that    is  not    generally   sup- ■ 
plied  b:'  negligence,      Lut    if  his   negligerice   was    of    such   a 
nature   that    it    could  be    said  he   was   acting  wantorily   in  regard 
to  that  window   the    act    specific    intent  would  be  present    arid 
not    constructive    intent;    that    is   it  would  be   negligence  as 
prooving   specific    intent,   not   negligence    as    taking   the   place 
of   specific    intent. 

REGIrJA  V  PAULKNER,    p,    213,         Indictment   for  maliciously     ^"^ 
setting  fire   to   a   ship.      Deft,    while    stealing  roim  on  board  a 
ship   accidentally    set   fire   to   the    r^om  arid  the    atiip  while    re- 
placing  tlie    spigot.      HELD,    deft,   had  no    intention  of   lighting 
the    rum  or   of  b^irnirig  the    ship,    and  he    did  not    imagine    or  have 
any   grourids    to   suppose    that-  the   fire   would  be    the    result'  of 
his   act    in   stealing  the    rtim.      Thei'efore   he    is   not    guilt  i^. 

Even   if   the   crime   was   not  maliciously    settirig   fire   to 
the    ship,   but    simply   setting  fire    to    one,   Be  ale    thiriks   that 
in  ligl-.ting   the  match   to   put    in  the    spigot   he   was   doing  hig 
duty   as   he    ought    to   do  and  that   he  was   then  all   through  v/ith 
his    crime;    therefore  Belae    thiriks   even  consti^uctive    general 

3S 


ijiteii.',    couid  liO'c   be   round   in   i'-his    case, 

RLG-irrA  V  LA71I.IER,    p.    21V,         indictment   f-or  maliciously 
•Aoundin:    ::«      A   quarrGl   arose   batween  the   deft,    and  V   in   the 
jublic  house    of  Xo      Deft,    ai;..v;d  a  blov/  at   Y  wi'tii  his  hell   but 
the   blov/  bovo-ideu.  off  accid8jrita.ll,.'   and   sti^-ick   Xo      M-iLLD,    dafto 
had  Lialicicu3    intent   against    one   person   in  the   firit   place 
and   in  carrjrinf:   out   that    intent  'jovjidad  X;    therefore   the   la'T 
considers    it   as  rialice    a.cainst   X, 

This    is   a   clear  case  vhei-e   a   specific   intent    can  be 
carried  over  as    deft,   had   precisely   the    same    intent    in   the 
first    place    as   v;a3   riecessary    in   the    second, 

SUi.ilvIARY,        Specific    intent    requires   an  express    state   of 
mind  ard.    so   to   carry    it    over  there  nxust   be    originally  an  in- 
tent   to   do    aliiiost    the    saivie  precise    thinr;  or   cne    involving  the 
same   kind  of    indent ,      Therefore-  specific    inient    caru-iot   be   car- 
ried  over   fror:.  different    criiues.      Thus   where    one  mixed  poison- 
with  an    intent    to  kill   A   and  3   was   killied,    it  v/as   carried 
over   -   Gore's   Case.      Trat   where   A  fired  at    an   a/iinial  and  his 
£ur:   set   fii'e    to   a  house    it  was    not    carried  over;    nor  where 
one    threvf  a   rock   at    a   crowd  and  hit   a  window,   where    there 
was   a   statute   against  ii-ialiciously   des^royinr,  persorial   property 
-  Regina  v  Pembilton;    nor  whe-n   one    is    stealirir   rijm   sets   fire 
to  a    ship   -  Regina   v  Faulkner, 

SECTION     FIVE.      CONCURREHCE   0?    IIjTEMT   AXD  ACT, 

To    constitute   a   criiiie   there  must    be   both  an   act   and  ari 
intent   and  both  must    concur   at    the    same   time;    that    is   all  the 
necessary   elements  must    be   present    at    the    same  mouiOnt    arid  this 
is    true    in  criiiies    requiring   either   reneral   or    specific    intent, 

REX  V  KNIGi-:T,    p,    220.        Indictment   for  'break inr  a.nd  en- 
terinr    a  dweliinc    house   with   intent   to   steal.      Deft,    supposed 
the    the    goods    belonged   ta  X  and  entered  for  th.e    purpose    of 
taking   them    on  his  behalf,      HELD,    the    indictment    is  not   sup- 
ported as    there  was   no    intention   to    steal,   whatever  the  be^ 

h<avior   of   the  deft,   was    in  tryirig   to   get    the    gp  ods    back  for 

"^* 

Burglary   requires   both  breaking  arxd  entering,    and  break- 
in   g     and  entering  with   intent    to    steal;  so   if  a  man  supposes 
he  lias    a  right    to    the    goods    in   q'uestion,  this  prevents   the   in- 
tent   to   steal  from  being  present, 

DUG-DALE,      V  REGIIIA,    p,    221.        HELD,    possessing  obscene 

39 


prints  with   intent    to  publish   is   not   a  rnisJe/asanor  because   an 
inten"!:   "Without   an  act    cannot    constitute   a   ci'irae    and  possession 
is   not    an   act.      But   pi'oc'-irini„   tlie   prints  v/ith   intei-it    to   pub- 
lish  is   a  laisdejvieanor  because    trie    procuring   is   an  act   and  th-e 
first   act    in  a    series   result  inr,    in  a  :.:i3deriiea.''ioro 

ATi  interit  v/ithout  any  act  carinot  be  pviriialied.  Txiis  case 
overrules  Rox  v  Su-tton,  p.  125  that  possessing-  with  intent  to 
publist.   is   a   crijiie. 

U.    3.    V  RlDDLii;,    p.    222.        Certain  i:oods  v/ere   consicned 
to  deft,    froia  abroad  with   tv/o    invoices,    ffi'c.h   instr-uctions   to 
■^nter  them  at    the-  custoxii  house    by   the    sinalier  and   sell  them  at 
the    lar.-er.      Def  s ,    delived  both   invoices    to   the   collector  and 
entered  theu  by   the   lar.-er  as   he   directed.      But   later   the   col- 
lector  se  ixed  the    roods    under  a    statute    providing   th^t    if 
goods    be    entered  v;'ia-.   are   not    invoiced  accordin;;  to   cost    at 
the    place    of    ii-ivoice,    they   snail  be    forfeited,      r-ELD,    there 
was   no   attanpt    to   defraud  the   revenue   and  mere    intent    cannot 
be   puTiished  urider  the   law. 

This   case    is    clear  a-ad  sinply   follo-.vs   the  preceediri,t, 
cases. 

Morse   v  STATE,    p.    225.        X,    a   servarit    of  deft.,   without 
his    consent    cave    credit    to  a   student   at  Yale   for  liquor   in 
violation  of  a    statute    concerning   giving   credit   to  Yale    stu- 
dents,     De-f  t .    assented  to    the    giving  of   credit    after   it  had  ■ 
been  given,      HELD,    in   criaes   a    subsequent    recognition  and  as- 
sent   to   the    act    is  not    equivalent    to  a  precedent    cozniiand   and  • 
does  not  make   deft,    guilt;  . 

The   interit    arid   the    act  must    be    present   at    the   sane    ttine 
and   so    it    is    irupossible    to   get   a   crime  by   ratification.      So   in 
negligence    the   negligence   niust    be    continuous   until   the   time 
of    the    injury;    as    in  tlie    case    of  the    engineer  leaving   the 
mining   shaft,   he  ifaB  negligent    every  moment   he    stayed  away  and. 
so  was   negligent    at    tlae    time    of   the    injury;    but    to  make   deft, 
liable-  negligence   nuist   always    be   proven   at    the   time    of    the 
in j  ury , 

STATE,    V  :.iO0?vE,    p.    224.        Indictment    for  breaking  and 
entering  a  house    in  the   night   with   intent   to   stealing  certain 
money.      Deft,    obtained  lodging   in  a  public    irm  arid  during  the 
night    took  money   fro...  a   desk    in  the   bar  room.      HELD,    a   travel- 
er has    the   riglit    to   enter  a  public   inn  and  ariy   of   the  public    • 
rooms   such  as    the    barroom.      Therefore   larceny   coriimitted  in  the 
barroom   caro-iot    relate   back  and    give   a   cri:ainal    character  to 
the    entry    into    the  house    3o  as   to  make    it   burglary. 

40 


A   crii.-ie    cannot'  be    secured  by   relation  any  r.ore    than  it 
can  by   ratification.      At    the   time   deft»   was    stoalinc   he  v/aa 
not   breakinc  and  entering,,    and  at   the    tirrie   he   came    into    the 
house   he   did  not  have   tjie    interit    to    stealo      So   a   crime    cannot 
be    obtained  by    the   doctrine    of   "tresi>a3s   ab    initio"      vmich 
only   applies    in   civil   action  and  ieft*   here   wouJ.d  be   liable 
in   court    on   that    doctrine.      But   a   lej-al   fiction   caniiot   be   em- 
ployed  to  i-ia]-;e   a   crime   and  the    intent    and   act  must    be   actually 
concurrent  o  •  • 

Uo   S«    V  FOX,    p.    227,         liidictmeni    for  obtain-:,-  roods   on 
credit   ;Yith  an   intent    to   fraud   iri  violation  of  a  U .    3.    statute 
providing   that    such  acts  v.-iihin  three  months   of  becoming  bank- 
rupt  are   criminal.      Deft,    did  obtain  cood.^  urxder  false  preten- 
ses,   not   knovTinc  at    the    timo  he   vVO-xLd  become   barikrupt ,   but     -    • 
subsequently  barikrupt   proceedings  were    commenced  against  him^ 
UELD,    the    act   v/as    not   an   offence   at    the    tir.ie    Conmitted  arid 
cariTiOt   become    such  by   any   independent    act    of  a  party  with 
which   it   has    no    coru-xect ion.      There  was    rvo    crimirial    intent    as 
the    statute   applies   only    to   acts   conviiitied   in  contemplation 
of  bankruptcy,    and  the   mere   fact   that    barjkr-aptcy   does   follow 
does   not    cqrry   the    intent   back   to   the    act. 

At  -the    time    of   tlie   act    the    intent   \7a3    lacking  to  make    it 
criminal, 

STATE  V  ASKER,    p,    229.         Indictment    for  obtaining  money 
under   false   pretenses.      Deft,    applied  to  X   to  purchase    some 
mules   and   gave  him  a  -first   lien  on  larid  he    represented  to  be 
free   from  encuinbrance,      X  had   also   executed  a  deed  of    trust 
on  the    same   land  t'O   Y,   who,   however,    co-jjicilled  Jd/'   deft,    in 
his   dealing  wi  t-h  X,      HELD,    there  was  no  false    prebense  as  Y 
councilled    def'n    to    represent    the   land  free,    arid  Y  thereby 
v/aived  his   lien;    bo  no  property  was   obtained  anJ    fc-he   pretense 
v;as   not   false,    althougi'.  deft,    believed   it    to  be    soo      Deft, 
must    be    acquitted. 

This   case    is    good  law.      Deft,   not    only   intended  to   do    a 
criminal  act,   but   did  what   he    thought   v;as    a   criminal    act;    but 
on  accouTit    of  -something  he  had   rio   knov/ledre    of  he  was   not   gui- 
lty  of  a  crime, 

158  Mass  0  5   452   -  selling  liquor  against  -a   statute   allowing 
salee    only   for  medic irial   purposes-.      Deft,    thoi^ght   he  v/as   sel- 
ling for  a  beverage   but   urtknown  to  him,    it  was   to  tie  used  for 
medecjj-ie-.-      Deft,    acquitted, 

3   C,   cc   Pc,    420,'     Deft,   pas -;ed  a  bardrnote    of  a  bank  he  knew  had 
stopped  payment ,'     Ke   aften'/ards   fo'orid  one  member   of   t-he    firm 
was   solvent   and   the   notes  v/ere    eventi;aily  paid.      Deft,    acqtd. 


SUMMARYo   The  criminal  act  and  the  cr'iniinal  intent  znuat 
coincide  at  the  same  moment  to  raal^e  a  crime.   Mere  intent 
vi^ithout  an  act  is  not  punishable  -  Rex  v  Knight  and  Dugdale 
V  Reginao   The  doctrine  of  relation  which  existo  in  torts  does 
not  apply  in  criminal  law  -  State  v  laooreo   One  cannot  become 
£.  criQii'.ial  by  the  ratification  of  another's  crime  -  Morse  v 
State o   If  the  act  done  is  not  criminal  although  supposed  to 
be  and  althoivgh  the  intent  is  present  there  is  no  crime"- 
rtate  V  Ashero 


CtlAPTER   SEVEU  = 

INTENT  AS  M^^FECTED  BY  CIRCUl.iSTANCES » 

Section  One o    Insanity o 

(a)  Test   of   Insanity, 

M'NAGHTEN'S  CASE^  p.,  231  o    In  answers  to  questions  put 
by  the  House  of  Lords  the  judges  said:  where  a  person  is  af- 
flicted with  insane  delusions  and  does  a  crime,  if  he  knew  at 
the  time  of  coirmitting  the  crime,  he  was  acting  contrary  to 
the  law,  he  is  punishable;  the  jury  must  decide  whether  at  the 
time  of  the  act  the  accused  was  labouring  under  such  a  def ect - 
of  reason  as  not  to  know  the  qu.ality  of  the  act  he  was  com- 
mitting; or,  if  he_  knew  it,  that  he  did  not  know  his  act  was 
wrong.  And  if  under  a  delusion  as  to  existing  facts  he  com- 
mits an  offence,  he  is  to  be  considered  in  the  same  'Situation 
of  responsibility  as  if  the  facts  supposed  were  real. 

These  answers  by  the  judges  are  extra-judicial  opinions 
but  it  is  a  very  good  statement  of  the  "right  and  wrong"  'teat, 
and  it  is  the  rule  and  test  adopted  by  the  English  courts.    - 

REGINA  V  HAYNES 5  po  234„   Indictment  for  murder.   No  mo- 
tive was  assigned  for  the  act  and  a  defense  of  insariity  was 
set  up^  '  HEIjD;  the  question  in  cases  of  insanity  is  whether 
the  defto  knew  the  nature  of  the  act  he  v.^a  s  doing  and  that  he 
was  doing  what  was  wrong. 

This  test  of  insanity  -  "the  knowledge  of  right  and 
wrong  test"  -  prevails  in  many  jurisdictions  and  an  irresis- 
tible impulse  is  not  held  to  be  such  insariity  as  will  excuse 
from  crimeA  "   - 

COMvlOIWEALT^:  V  ROGERS  J  p.  235,    Indictment  for  murder. 
Defence,  insanity^  HELDj.  a  man  is  not  to  be  excused  from  re- 
sponsibility if  he  has  capacity  and  reason  sufficient  to  ena- 
ble him  to  distinguish  betweeit  right  and  wrong;  and  if  he  has 

42 


t^ 


o 


la- 


this capacity  and  the  j^iiowledge  of  the  nature  of  the  act-  he 
is  doingp  partial  insanity  will  not  excuse »  But  if  he  acts 
from  an  irresistible  impulse  which  for  the  time  being  over- 
v.'heXm8  his  reason,  he  is  not  for  the  time  a  voluritary  agent 
and   is   not   responsible. 

Thie    is   one    of   the    jvirisdict ions  which,    starting  from  tHe 
rigii't    arid  wrong  test,  holds   that   the    test    is    satisfied  and  the 
deft,   excused  if  he    act-s   because    of   an   irresistible    jjiipulse 
and  not   as  a  free   agent, 

'  STATE  V  RICHARDS,    p,    238.         Indictment  -for  burning  a 
barn.      Defense,    insufficient  mental   capacity.      HELD,    the   qu©^~ 
tion  for  the    jxiry   is  whether   the  mental   capacity   of   the   defto 
was   sufficient   to  warrant   the    impution  to  him  of  a   felonious 
intent,      if   the   deft's   perception  of   consequences  was   orJ.y 
such   aa    is   conmon   to   children  (bf  tender  years  he    ouglut    to  be 
acquitted. 

This    is  another  test    of   insanity  which  Beale   does  not 
thirik    is   tenable „ 

FLANAGAN  v   PEOPLE,    p.    241,        HELD,    the   unsoiindness   of 
mind   sufficient    to  excuse    the   deft,    on  account   of   insanity- 
should  be    sudi   as    to    render  him   incapable    of  knowing  or-  dis- 
tinguishing  right    from  v/rong  at    the    time    of   the   acta      The   ele- 
ment   of   the   pov/er   of  choosing  right    from  wrong  has   not   been 
accepted  at    law   as   an.  assential  element    for   the    defense    of  irt- 
eariityo 

This  is  the  riglit  and  wrong  test  again  and  this  case  dis- 
tinctly refuses  to  aJlow  that  an  irresistible  impulse  is  a  de- 
fense a  ■ 

PARSONS   V'  STATE  J    p,    242.         Indictment   for  murder,      De-    '^ 
fense    insanity o     HELD;,    the   questions   are:-  first  was   the   deft,^ 
at    the   time   afflicted  with  a  mental  disease    so   as    to  be    in- 
sane?     Second,    if   go  and  he   did  not   ki 
applied  to  -the   particular  act    in  ques"! 

responsible.      Three,    if  he  did  have    such  knowledge   but  had.  not 
the   poTwer   to   choose  between  right   and  wrong,    and  if   the   crime 
was    so    conriected  with  his  mental  disease   as    to  be    the    product 
of    it    eolelyj   he    is  not    responsible.     With   these    suggestions 
the    inquiry   is   a  matter   of  fact    to   be   left    to   the   jury  in  each 
particular   case;    so  there    is   no  legal  test    of   insanity^  . 

V 

This  doctrine   that   there    is  no   legal  test    of   insanity,    bt 
that    it    is   a  que^ti-on   of  fact  dn  each  particular   case    is  fol- 
lowed  in  Ala,,   No  Ho,    andMicho..   and  Beale   thiriks    is    the   true 
theory  0 

43 


rnov/   right   from  wrong  3-8    "^v.   \ 
3tion  he    is  not   legally      ^_^ 


^ 


SUIvIMARYo        The   real   question   in  criminal  law    is  not  whe- 
ther a  man   is    insane   but   whether  he    should  be  held  criminally 
responsible,    ari-d   so  we  must   find  the   i-ight    test    of  accounta- 
bility   in  criine.      This    is    something  like    finding  general 
crimirial    intent    as    the    object    in  finding  both   is   to    secure  a 

state    of  mind   in  which    a  man  must    be    to   be   pujiishable ,      In 
old  medieval  times   the   law  did  not    look   at    a  man's    sanity   and 
the  modem    idea   of   puriishment    in  cases   of   insanity   is   a   grad- 
ixal    growth  from  the    time   when   a  man  was   puTiished   entirely  for 
his   act ,      The   first   step    in  advance   was    that    a   raving  maaiac  ' 
would  be    excused  but    it    is    only   comparatively   recently   that 
the    question  has  been  viewed  from  a   scientific   standpoint,       v 
The    idea   became    quite   prevalent   by   the   begirjriing    of    thi?    cen- 
tury and  was    quite   firmly   established  by   the    time   of  M'Naght- 
en's    case,    1843  j    that    a-mari   in  a   certain  state   of  mind   shovild 
not    be   puriishable  but    just   what    that    etatle   of  mind  ^jnuEt   be  was 
the   disputed  point  <,      This    case    adopted   the   right   arid  wrong 
teat   which  has    continued    in  Engiarid  ever   sinc-e   arid  been  fol- 
lowed with  many   jurisdictions    in  this   country.      But    in  1886,- 
in  the   Alao    case   of  Parsons   v  State,    the    true   doctrine  was 
laid  down   th^at    the   orily  accurate   rule    is   to   judge   each  ease 
by    its   facts   arid  that    is    impossible   to  lay  down  any  definite 
test,      BEAIxS   commends    this  -case  highly  and  considers   it    the 
best    opinion  on  the    subject.  "^ -b'ii}  ^^^^ ■  ^ 

(b)   Proof  of  INsanity. 

PEOPLE  V  GARBUTT,  p.  255.    The  court  was  requested  to 
instruct  that  sariity  is  a  necessary  element  in  the  coirmiasion 
of  crime  arid  must  be  proven  by  the  prosecution  when  the  de- 
fense of  insaJiity  is  set  up,   HELD,  sanity  is  presumed  uritil 
proof  of  the  contrary  condition  is  given  by  the  defense;  but 
when  any  evidence  tends  to  overthrow  this  presumption,  the 
burden  of  proof  upon  this  part  of  the  ease  also  is  on  the  pro- 
secution to  establish  the  conditions  of  guilt  beyond  a  reasoi*- 
able  doubt , 

This  case  holds  that  the  prosecution  must  prove  both  the 
act  and  the  ijent  for  a  crime  and  that  a  defense  of  insanity 
is  not  an  excuse  but  a  disproof  that  a  crime  ever  existed. 
However,  the  burden  of  producing  evidence  in  the  first  in- 
stance to  rebut  the  presumption  of  X^sanity  and  intent  is -upon 
the  accused.   Beale  thii-iks  this  a  true  view,  although  i-t  is 
held  in  the  minority  of  jurisdict ion„   See  note,  p.  257(, 

STATE  V  LAWRENCE, P/  258.  HELD,  the  plea  of  insaraty 
is  a  sort  of  plea  in  excuse-  as  it  shows  an  excuse  for  what 
would  otherwise  be  criminal.   Every  mari  is  supposed  to  be  aane 

44 


// 


IJ 


'^4 


tya. 


and  this  stands  until  removed  by  at  least  a  preponderance-of 
evidence;  so  the  burden  of  proof,  where  insanity  is  set  as  a 
defense,    is   on  the   defto 

This   case    is   probably  law   in  the  majori'ty   of  jurisd-urtioii- 
but   Beale   does  not    think    it    is    the   true   viewo 

SUJvIMARYo        Eeale   agrees  with  People  v   Garbutt,      Insanity 
is  not    a   juetif icati-on  or  an  excuse   for  a   crime   but    it    is  a 
defense  ,    if  anything^      The   reason  an   insane  man  is  not   punisl*- 
ed   is   because  he  has   not    the    intent    to  do  v;hat  he   does  and,  so  • 
the   defense  of   insaiiity   does   not    admit  he  has   committed  a 
crime   but    saye  he  has   done   no    crime o      The   presumption  is  that 
a  man   intends   what   he   d.oeB   and  so   the   burden  of  bringing  in 
evidence    oo   attact    this   preauinption  is   on  the   defto:    but   the 
burden  of   proof,   when  the   presumption  is    once   attaclred,    is   on 
the   prosecutiono      This    is   just    as    in  any   other  criminal    case, 
that   the   general   criminal   intent    need  not   be   proven  by  separ-** 
ate   evidence   until   tiie   question  is   broiig^t   up,    but    is   pre- 
sumed vn-til  attackedo      3ut   then   if;  rau^t    be   pro^'ed  by   the  pro— 
secutionc      The   prosecut ion  must   then  proove    it   to   the   jury  be- 
yond- a  reaBOiriable    doubt   lilit   all  other  parts   of   a   criminal 
case..      There    is   a  late  Uo   S-c    case   agreeing^  with  People   v  Gar- 
butt    -  Davis    V  U„    So  J    16   Su.    Ct ,    ReP„j    253, 

SECTION      TWOo         INTOXICATIONc 

PjEARSON'S      case,    p,    261  e        Indictment   for  muiider^      De-       ^' 
fence,    drurA-enesCo      HELD,    voluritary   drurikeness   is   no   excuse 
for  a   crime o 

'  The    j.ntent   necessary    is   to   be    inferred  from  the   fact   that 
def  1 0  J   when  he   beccmss   drurik ,   must    take   the  peril  of  his   act». 
It    is    in  the   nature   of   constnictive    intent,,    but    it    is  more 
accurate    to    3a-y  he    is   responsib-le    in   spite   of   the   absence   of 
gene  ral   int  ent  o 

R.EG-INA  v  DOODY,    po    261,   ■     Defto    attempted  suicide   and  air- 
leged  drunK-erieti?}   as  a   defence,      Hii-LD,    drurikeness    is   no   excuse  > 
for  -a   crime,,    but    it    is  material   in  determining  v/hether   or  not 
derto    really    intended  to   take   his   own  life. 

This   's^as  an  attempt    to   coamit    suicide  and  to  a't^i-empt   to 
do  a   thing  there  must   be    a   >-?peci-if-ic    intent   to  do    it^      Dmnlre»— 
ness   will  not    eecuse  what   deft,    I'eaXly  did,   but-  as    an  attempt- 
implies  an  intent    to  do    something  further,    defto  may   show  he 
did- not    intend,  to  kill  himse3.f„      Therefore,    in  proving  a   crime 
-requiring  specific   intent,   druj'jkenes's   or  any  other  method  od  • 
proving  deft,   did  not  have  that    intent    is   adiaiBsable  as   evi— 

45 


teij^j^  baa 

S    ;  riiTsani    sir 


~ay 


-d. 


IS 

-3 


-*V0      Si 


denee.      General  oriminal   intent   can  be  aonstrued  I'-or  aoit'o-done 
Tivl-.ile   a  man  is  drunk  and  he    is   treated  just   as   li'  he  v/er-a 
8ober»   for  getting  drunk    ia   either  an  a^it   ^rimixial  poi?  as  or  ' 
at   least  negligent o 

PLSiGlNA  V   GAMLEN,   po    262,        Deftg    committad  an  as&a.iilt 
while   iutoxieatedv     BEID^   drurikeneg-s   is  no  excuse   for  a  arime 
but    in  flonp.AdsrJ.ng  whether  the   defto    apprehended  av-   assault 
on  hiins-elf  the   state   of  mind  in  which  he  was  may   be   taken  into 
account o 

ilEGXNA  ■'}■  DAVlK,   p.    262 o        Defto   attempted  murder  while 
eiiffering  from  deleri-um  tremens,    resulting  from  exceeaive 
drinking,,     HELDj    if  one  by  drunkenees   brings   on  a   state   of  di- 
sease v/hich   eauHsc;   auch  a  degree    of  madnets  whi^sh  "vYouM   exeuaa 
him     if   tiauBed.  in  any  other  vay,  he    ie  not   respunisible   for 
acts   resulting  ^herefrom» 

Thi£i   ig  good  law  as  delerivtm  tremenn   is  a  forn-;  ct  inijan— 
ity  and   insaruty   is   a  defen-.sij    no  rcattor  hoNV    rifa^Kedo 

?£-0PL.5  r'S' ROGERS,   po    254  o      Indictment   for  mur:erg      The 
jud.ge    i'el'URod,  to   iu\itract    the.    jury   that    ir'    vner2.  -wa-j   nexuher 
intent   nor  motive  by  reai^on   of   intoxication,   deft»    should  be 
convisted  of  ms-nslaugi-iter   inuteado      HELD^    the    arirof   of  xaurder 
cannot   be    reduced  to  manslaughter  by   showing   tne    deft.^  was 
drunk,   v;hen  the    same    offence  ^    if  'soxrmitted  by  a    sober  man, 
would   be  murder 0      But    if  the   defto   was    so    far   deprived,  of  his 
senses   ae    to   be    iriaapable    of   entertainirig  a  purpose    or   acting 
from  design J    it  would  be    different^      Intent  mnnz  be  diatin- 
gdished  from  motive  -and  mer^    incapability   of  a'-jting  from  rao«"' 
tive  v/iJ,l  not   exftueeo 

If  a  man   is    so   dr^arJi   as   not   to  be   able    to   entertain  spe- 
cific  intent  5,  where   a   specific   intent    is  required.,    it    is  of'    • 
course    a  fata.1  obstiniction  to  that    crime,,      The   judge   iu  this 
case    neat e a  th^t   dnjnkeneiss  aggravates  a   crimen _,   but   this^is 
not   true  as    each  crioB    is    consid.e?u-ed  by   i^seifr,  -  _       "' "—' 

CHOICE  V  STATE,   p.    269  o        The    court    refiJised  to   instruct 
the   .jury   that    if   the   defto  was    irresistibly   com.pelled  to  drink 
and   thereby  became-  insane   and  killed  the    dioeased.,  he  was  not 
fc;uilty   of  homicide.     HELD,    the   excuse    of  an  irreaielrible   im- 
puis?   to  drink    is  not  established  as   an  e.^touse   for  drunkeness, 
and  legal  responsibility  cannot   be   avoided,  by  it  o 

This   case    ia  rather  on  the  line  but  Beale   thinka  it   ia 
rigiitly  dejfiidfid.  because   the  deft,    is  to  b3,aire    for  an  infJAieiuja 

46 


caused  by   previous   drirLking.      If    it    could  be  provdri  that   tha 
disease  was   caused  by   an   inl'luerice   for  which  deft  4   was  not  to 
blame,    of  course  he    is   not    responsible,  ^ 

STATE  V   JOHNSON,    p.    270.        Indictment   for  miirder  in  the 
first   degree.      Wilfull,    deliberate,    and 'premeditated  killing 
must   be    shown  to   support    this    iridic tment,      H-ELD,    intent  must 
be    shown   in  fact   and  the    state    of   the   deft's,  mind   is  material 
and   so   evidence   of   intoxication  is   adcais sable   and  tend^   to 
show    that   deft,   was    incapable    of  deliberation  and   sc  guilty   oif 
murder   in  the    second  degree    rather   than   in  the   first. 

People   V  WajJfer,    p.    271,         Indictment   for  larceny.      Deft, 
was   intoxicated.      HELD,    larceny    involves  wrongful  taking  and 
felonious    intent    to   steal,    and   so    if  deft,    for  any   reason  in- 
dulged no   such   intent    the    crime    is   not    conmitted. 

These    last   two    cases   are    r;ood  law   and    show  that    drunken- 
ness may  dispcove   a   crime   where   a    specific    intent    is   required^ 

SUtvIIiIARY.        DrunkenriesB    is   not   a   defence    in   itself  but    it 
may  act   as   piece   of  evidence   tending  to   show  a    certain  crime 
has    not   been  committed,    as   where    th«  crime    requii-es   specific 
intent.      One   who  voluntarily   indulges   in  dririk  must    take   the 
peril   of  his   acts   arid   the    general   intent    is   to  be    iriferred 
from   this.      It    is   in  the  nature    of    const i^^ctive    general    in- 
tent,   but    it    is  more    accurate    to    sa-y   deft,    is    responsible   in 
spite    of   the    lack   of  general    intent,      Drionkermess   cannot 
charige   that  which    is    a   crime    into    that   which    is   not   arid    it 
cannot    exaggerate   the    crime.      Drurikemiess   is   therefore   differ- 
ent  from  insanity  v/hich   is   a   defence    in   itself,    but   delerium    • 
tremens,    being  a   species    of   insanity,    is   an  excuse^ 

SECTION      THREE,       COERCION. 

ANON,,  p»  272.  A  woman  coxivnitted  theft  by  command  of 
her  husband,  HELD,  such  command  v/dthout  any  other  coercion 
will   excuse   any  felony    in  the   v/ife. 

ANON,,    p.    273,         If   the   wife    and  husband   coiiiTiit   a  lar- 
ceny  togehter  or  a  burglary,    there    is   no   felony    in  the    wi<fe  , 
for  the    law   supposes    she   acted  by   coercion  of  the   husband. 

The   defence   of   a  wife    is  a  purely  technical   one   and    so    if 
a  v/oman  believes   she    is  a  wife    and   is   not,    she    is   not    excused. 
The    first    case,    p,    272,    says   that-  if   she    is   coerced  in  fact 
slie    is   excused,    but    the    second,    p.    273,    goes   farther  and   says 
that    if   she    is   with  her  husbarid  coercion   is   presiomed  without 
proof;    but    some    crimes   are   not    included,    as  murder,    treason., 

47 


t 


;;    9X1^ 


■/a 


and  perk-aps    robbery. 

1   C.   &  Po,    116   goes   the  farthest    on  this  point.      It  holds 
that    if   the   huEbarui   and  wife    are    indicted  jointly   for  a   crime, 
the   v/ife    is   entitled  ta  ari   acquittal   simply  because    she    i'fe   inr^. 
dieted  with  her  husband.      This    is   going    too   far,    as    later   ca-. 
ses  make    it    appear,    for  the    v/ife   miglit   be   convicted  and   tha 
husband  acquitted. 

M'GROWTHER'S   CASE,    p.    273,  -     Deft,   was   charged  with   en- 
tering  a  rebellion  with  his   lordo      Force  v/'as    sut  up   as   a  de'- 
fence.      The    lord  threatened  to  force  those    to    go   v/ho   refused 
and   to  destroy   their  property.      HELD,    the    orily  force    that    ex- 
cuses   is   a  force  upon  the   person  and   present    fear  of  death; 
and   this   force  arid   fear    of  death  must    continue   all  the    time, 
the    party   remains  with  the    rebels. 

This  is  a  clear  case,  arid  it  shov/s  that  mental  restraint 
growing  out  of  the  relations  betv/een  -parties  is  corairiSd  to 
the  relation  between  husband  and  wife.  The  Comnon  Lav;  recog- 
nizes absolutely  the  subjection  of  the  wife  to  the  hu^^baj-'.d, 
but  no  such  subjection  in  any  other  relation,  even  though  it 
may  be  greater  in  fact,  as  probably  was  the  cas-e  betv/ean  lord 
and  tenant    in  Scotland  at    the    tims  of    this    caseo 

REGIIIA  V  DYKES,    p.    274.        Husband  and  wife  were    indicted 
foi'  higliv/ay   robbery  with  violence.      The    jury   fourid  both   guilty 
tut    that    the   wife   acted  'orider  the    coercion  of  her  husbando 
?;hei*ebi'    the   judge   directed  an  acquittal   to  be    entered  for   th^e 

This    case    iyidica-:;es   that,    although  there    is   a  preEumption 
of   coercion  v;here   the   husband   is   present  „    it   does   not    relieve 
the    comn    from   investigating    it,    although    it    is    a  presumption 
ori  vffiich   the    jury  may    find  a   verdict.      The    fact    is,    that    in 
evory    case    the    inquiry  must   be   made    by    the-  jur^/ ,    and  the   wife 
carinot    claim  an   acquittal  before    the    trials      So   the    coercion 
liiUst    be    found  as   a   question  of   fact    in   eacl:   case  urilssij,    of 
course,    ylo   evidence    is  produced  by   the    prosecution  to  dis- 
prove   coercion;    but    the    trial    is   assisted  by   the   prestiraption 
that    if   she   acted  v/ith  hsr  nusband  she    acted  by   coercion^ 
Eeale    thiriJcs  higliv^ay   robbery    is   too  high  a   crime    for  the.   pre- 
sujTiption  to   operates    but   probahly   the   authorities    are    against 
Eeale    in  most    jurisdict  iojis;    but   at    any  rate   this    in    zne  }\igh'- 
est    crime    excepted.      Russell   exceptes   treason,  murder,    and 
I'ob-Tei-y . 

COKIMOIIV/EALTH  v  DALEY,  p.  275,  HELD,  v/hen  a  married  wo>< 
man  is  indicted  for  a  crime,  and  a  defence  of  coerr.-.iori  by  her> 
hi'-Gband   i<3  set   up,    there    ig    a   presumption  of   such   coercion 

48 


fi'cm  his   presence   at    the    time    of   the    vrrimey^    but   tiiiy  pr-evsurnp- 
tion   is  not    coriclusive   and  may   be    i-^ebutte-io      SU(3h  p'reK'-imption 
13   raised  if   she    is   riear  enough   to  b?   undsr  hi'j    irrir.ediatc-    con- 
troll   and   influence;    which  last  ma3t    be    left    to   the    jury  and    • 
■wilJ.   depend  on  the    natui'e    of   the  act.   rrrj.   the  v'jj.r.-j'Umsl.auces   of 
the    case, 

SUMIvIARYc      Coei-'cioj-i   is   o.   ter;hiiXoal  teiTA  f c  r    thfe   isontroll 
whinh  a  huuband   is   3i.ippo:^>ed   to    exert    ovfir    the    vvifeo      Oompx"il"- 
Bion   i'S   a  genera],   teita   applying  to    contro^l    exercised  over-  • 
anyone  0      It   was    at    first  held   in  1352   that    coercion  was  a 
question  of   fact,    but  xmz    later,    in  lG50i,    p'^it   upon  the  purely- 
technical   grounds    that    if   the   wife    acted   in  the    husbsj^Kl'' s   pro- 
pence    Bhe   was    excused;    firially    the    doctrine  went    feo    far  as   to- 
ho].d  that   on  a   joint    indictment    the   \7ife    should   be  discharged 
at    once  2      Yet    the    doctrine  had  exceptions;,    suoh  as    troaaon 
arid  murder^    and-   ■soixe    authorities   add    purjury,    robbex'yj   and  all 
forcible    Crimea.      In  certai^i   offenr-es   ali^Oj    especially  -litatu- 
tory   offences   a^    selling  liquor >   keeping  a   baudy  house^    etCo, 
a  mai-ried  womari   is  not   excused  because    it    i?   not   a   quest iorx 
of    intent    but   a   qTiestion  of   stopping  a   publi.ii  m'.iiiynse ..      At 
least    it   may    be    said  that    in   some    '-iuch    isaeee  not    requiring  an 
inteiit    the    presttmpt ion   is   against   her-.      The  uiodern  doctrine   is 
that    if   the  husband   is   present    or  near   onoujrh'  ko    that    ahs;    is 
under  his   controllj    thie   law   presunee   coercion,.      But    if  he    is 
absent    there    is   no   such  prasi-impt icn,    and   even  ^^'h ere    the   pre'-- 
Bunaption   exists    it  may   be    rebutted   by   evidence. - 

A  person  coiopelled  by   fear   of   death   to   do  an  ast    is   ex- 
cused,   but   he   must    escape    as    soon  as  posssible, 

SEGTIOII  FOUR.         IKFAKCYc         INCORPORATION^ 

HAWIvINS   po    276  o        Neither  a   son  nor  a    'serysn.t   are   ejceused 
the-    comiiiission  of  any   crime    by   the    caamaJid  or   coercion  of   the 
father   or  master, 

REGINA  V   SMITH  f    p,-  27G„      -Indictment   for  laaliciou^ly    eet'- 
ting  fire    to  a  ray-rick  o      Deft.,   was    a   boy  of  ten  yeai's   and 
there  was    no   evidence    of  iralicious    intents      ILSLDj    a   -tihild  un™- 
der   seven  yeai's   is   presiimed   incapable-  of   crime,   but    after 
fourteen  ha    in  absolutely   responsible ,      Between   seven  ax^X 

fourteen  a  malicious    intent  maist   be   prcAren  and    cannot   be   pre- 
Buxned  from  the   mere    comnission  of  an   act. 

This    is   the   law  as    to    infant  Bo      There    is   an   arbitrary 
rule    that    a   ohdld  under  seven   cannot    ■urder  ariy   circumstances 
be    convicted   of  a  crime  o      This    is   foiindeid   on   the    theory  that  a 
child  under-   seven  cariTiOt   have    a   cr:lminal   intent  j  -but    it    ig   of 
course  an  arbitrary   rule,   although    it    is   absolute c      Between 

49 


the   ages   of   seven  and   fourteen  there    is  no  presumption  either 
way,    arid   so    the   goverriraetn  must    prove   both     act   and  the    exia- 
tencG      of  the    intent  o      After   the    age   of  14   the    govenjiuetn 
is   assisted  b-y   the   presumption  that    a  man  intends  what  he   vol- 
untarily does, 

COI.ftiaNWEALTH   v  IT£W  BEDFORD  BRIDGE   CO,,    Po    277,         A  cor- 
poration v;as    indicted  for   a  nuisance    in  rrraintaining  a   bridge 
across   a   river   and   thereby  obstructing   it^     HELD,    a   coi'pora- 
tiov!   cannot   be   irKiicted  for  offences  which  derive   their  e>-iin*- 
inality  froni  evil   intent;    but   beyond  this   they   are   ?,iab'Ie   for 
Wilawful  and  wrongful  acts   conr.iitted  by   their  authority o 

This    ease    in  the   Uo   S  .,   and   cases    in  England  about    the 
same    time    decided  that    a    corporation  can  be   punished  for  a 
positive  as   well  as    c  negavive   act^    and   can  now   be    indicted 
for  any    crLme    it    can   coriTnito      They   carjXiot   of    course   have 
specific   intent    arid  hence  are   not    guilty   of  crimes    requiring 
aucho      AiKo  the    crimes    of   corporations   are  neceesarily  limited 
to   those   punishxable   by   a    crime,  as   a   corporation        cannot   be 
pun'isiieci   in  any  other  way,    exc^ipt   by   tailing  av/ay  its    charter, 
which  Beale    says   is  never  done -in  criminal  caseuc 

SECTION   PlVEo         IGNORANCE   OR  MIST.^KE. 

LEVirrT^S   CASE,   Pa    2,79,        Indictment   for  homocide,      Defto 
thi-ust  his   rapier   into  a  place  ^v'here  he   had  reason  to   Biip~ 
pose   a  burglar  \7as   and  killed   one  who  was   not   a  burglar, 
HELD,   not   guilty  of  homccideo 

Defto  had   the    riejit    to    do  the   act    he   supposed  he   was 
doingj,   tlriat    iSj    kill   a   burglar j    and  so   there   was    no   general 
criJAinal    intention.      This    is   a  case    of  mistake  of  fact  and  the 
one   vTho   acts    in  ignorance    or  mistake    of  facts   is   to    be   treated 
according  tc    the    facts  he    supposed  existant,    foi'  he   dosB  not 
voluiitarily  do    the    act   he   does   arid  there    beirig  no  negligence, 
there    ie   no  criminal    intent.      This  principle   extends   throu^i- 
the   whole    of    crioinjial   lavr ,   except    in  a   fe-w   statLitory   offences, 
that    if   0 -xe   acts   througl-.  ignorarLce    on  the    state   of  faets,   he    - 
i'i  to   be    excused  criminally,    althou£jx  his  mistake   is   that    of  a 
foolish  marie 

REX  V  BAILEy,    p,   2S0 .,        Indictment   for  malicious    ghoot« 
ing.      Deft,   did  the    act    at    Sea   au'id  the  statute  under  T/hr.ch  he 
was    ind.lctsd   ■■vas    pasaed  vnien  he   was    out    at   Sea,   and-  he   could 
not   possibly  have   Imown  of    it  ^tYi^ri.  his   act   v/as    donso     KELDj 
in  strict  law  he    is    guilty,   but  under  the    circuriistanae©  the   • 
judge  J?  applied  for  a  pardon  on  the   git*our.>d  that    the   defto   eeu^ 
not  have  heard  of    the    statute o 

50 


^ 


The   j\3Ldg£)3  themselves   nppiiQd  Tor  a  pardon  in  thiti   ease 
and  Bealo   gay?i  this  -pra^   rjot    on  the   ground  of   in  justice  but    - 
that    it  way   a  method  of  re ys ■-.-'Bins  the   desi^iori  an'3/  indicates 
their  view  thJ-.t   r,h«   yonciction  waw.  ag:airj.at    the  law>i 
One    (raiJ.c   62  -  Er-ig  Aj:!.vi  {*at;o   -  an  einbargij  as:.t  wai   passed  and 
thi?5  vegi5el  Bailed  within  h   fev?-  hours  after  the  pasaa,ge  of   liie 
acta      When  the    inf ci^aat io.-i  G'ouid  not   posgiMy  ha-tra   reached 
where   the    vegBel  va«  o     Def  ttj. o  were   scnvicted  o      There   is  no 
doiJ.bt   oi   tijfit   ciorrectnega   of  thi^i   fItieision,j   besauss   the  legis--' 
lature  ha«   a  perfsst   right   to  rxake   a  law    go   into   effest  -ali    > 
C'yer    itg  territory   in^ediateXyj   however  •unjust   It  ro.ay  he,. 
In  R'i.v;  \'  Bailey^  Beale   thinks  there    ia   a  distinction  becausSg 
aj.tho'.Agh    the   legislature  has    tb.e   power  to   Isgiwlate  fc-}."  .Si->.g"- 
lieh  ves'selis   on  the   high   Be^ze,,    it   does  not  do   it   on  the   theory 
tha^-    it    ii?    pi.rt    of   the  territory   of  tli£  ratio/ij   but    or-  the 
theory   that    IX  ha  e  t.b.ie  right   to  say  what  law  th£   veseel  shall 
isarry   av;ay   ft'ith    it   :fjr*oiri  SngXando      If  thit?,   view  iiS   correst   th« 
lecrivj'iature   cannot    cliange   the    law    for  a  Yet^eel  8.flT.f^r   it  has 
left  port*  0 

R.BiX  '/  HAIjLj   po    2Slo         Indietment    for  robbery..      Defto^ 
a  poacher 5   threatened  a  game  .keeper  with  -sj-iolenite   if  he   did  ' 
net    give   up   jjertslii  wires   and   game    gei2;eii  by   the    gaoie  K'eeper,/ 
The   keeper  a^raented  arid   gave   th^m  up   th'rough  fear   of  violenGCo 
K.SLD,    if  defto   aisted  under  a  bona  fide   belief   that  he  vfas   re« 
crj-vorins;  Jai©-  own  property    thex-e  wat^   no    intent    a.nd  deft,  must- 
be    a.>'.qulttedo 

There  v^-fiB  a  mistal^e    of  law  hereg   but    it  was   a  cage   of 
robbery;,   and  robbery  requires   '■     specific   intent   to   steals 
v/.hie.h  rjould  not   be  present    if  di?.ftu-  t.b.ou.e;ht   the   grjod«  were  his 
o^.n  and  that   he  had   a  r.iglvt   t  o  v.Ii.s2jo 

R5IX  Y  i;;iiGPs   p^   282o      Dfif  t  y^   an  •::!lienj.  wag    indicted  for     , 
an  offerifte    tsoirjaittee  in  England o     Defense  j   that    the    ast  wag 
nor.   a   ,^rime    in  'ais   o'vtsti  country   an.d   that  he  be.lie^'ed   it   to    ba 
an  innocent  act  o     HSLD^^    it    is   no   ejceuRe   even  if  the    of  fence - 
wag   not   a   orime-  in  his   own   sovuxtry  and.  deftc   ViTi  f?  ign.orant    of 
i t  "3   er  J jj'i  j . «3,  j. t.y . . 

.A  .raista.'ke    of  law   i.i-i  no  defeneO;.   beoa.use   the  .deft,,    intends 
to  do   the   ac?  t  hfi   does:    but    .i.n  the    fsase   of   a  mi  is  take   of  fact 
he   (ioo^.   not.  do  the    aet  .ha   thin-V-s  ha    is   doing,,     The   reation  why 
a  \m.i\  j.%  punishable  yilx^.w  he    is   igmsrant   of  the.   3.aw    1%  to   be. 
explained   on  the    bi'oad  grounds    of   publis  poliey^   for  otherwiee 
a  j)Qrty  woialid  i-ia-^e   an  advantage   .by  >;eeping   ig.Viorant    of   the. 
law  5 

RBGIWA  V  TOWSE,   p..    2S3o        -Indie tine>vt   for   '?e\%\r\^  afire 
iJialiciouBly  against    the    statute,.      Xt   appeared  that   fires  ifere 


set    iri  those  places   orjeasionail-y  by  persons   to   iinprove  the 
gi'cv;(-,h   of   gra«?-.      HEjjDj,    if   defto    set    the.   fire   tkixilrin  he  had 
a   rig^it    to   do    so    io  -v/ou^-d    not   be    a   crirnima.!    offence   under  the 
atafiute,    ass    the    aiiatuce   requires  rnaiioeo 

The    apecifio   intejit   was  wanting  hnre   arrd  hence    there  was 
no   er.imej    althougli   the:re    was    an  unlawful -act  o 

SIMA  AT?Y.        WHoevcr   breaks    the   law    of    the    land  is   guilty  ■ 
whether  he  had  knowledfje    of    it    or  not    «-  Regina  v  Esop,    Brie- 
Arm  Case,      But    it   may  be   a  question   qhe'ther  a  particular  act 
applies   to    an  individual   -  Rex  V  Bailey ^      One  may   act    contrary 
to   law   and   still   \7ith   such    an    int-ent    as    not    to  be    guilty   of 
a   crifiiC    involving  Bpecific    intent.   As    in  Rex  v  Hall,      Igrior- 
ance   of  fact  would  excuse    and  then  deft,-,    is    to   be   treated 
exa''-;tly   as    jJT    the   facts  \7ere    as    he    supposed   them  to   be;    but 
what   a    reasonable   iiian  v/ofjld  6..0   under   the    circumstances    is   not 
the    teso  J    for    in  c.riaiijfial   lav/  tlie    thing    is   to   tird   a   crirni^nal 
Btat,e    of  mind,   in  a  jjarticalar    individuals 


CHAPTER     EIGHT. 

xHTENT    lil  STATUTORY    07FE1IGES  , 

V.'e  have   here&oforo    been  dealing  with    interit    in   common  law 
crime Sy    arid   only  with   statutory  'crirxTe,s   as    they  were  desci'ibed 
in   the   very  words    of  the    statute o      But   any  one   of    the    conmon 
law    requirements   for  a    crime  may  be   altered,  by  legislature   for 
al3.    crimes    or   for  any    specific    crime,    and  the    legislature  may 
say    that    a   certain   aot    slisl3/  be    a   crime  without   any  fault 
whatever  of   the   man  doing   it o      This    power  makes    it    often  nec- 
essary  tc    find,  oij.t    just    what   the    legislature    intends;    and  th® 
question   is   one    of   interpretation,,    for  statutes    simply  operate 
as    changing   and  amendir^g  the    conmon    law    and   the-   comnon   law    i'©" 
mains   except    so    far   as    it    is    altei-ed  cy   statute-,/ 

AIJOIJ.5    p.    284,         Deft..    \-a3    indicted   for  having    in  her 
possession  governm.ertt    stores  without    a    certificate    required  by 
statute  o      The    prosecution  argued,  thay  as   the    certificate  was 
the    sole   excuse    she   mirst   be    oonvicted.,-      HELD^    all  the   circum- 
stances  of   the    case  must    be    considered   arid    if   deft.„    came    into 
poetess  ion  withotit   fraud,  or  .-pi^bPhavior   the   Bhou.ld  be   acquit- 
ted. 

This    caiie    is   pi'obably  wrong..      Left's,    defence    aniounts   to 
Baying  that    she    caive   by   the    goods    lawfully;    but    the    statute 
does   not   require   unlawful  poseevjB ion,    as   the    j.egieiature   dj.d. 
no'ii  wish  to   go    into   the    rigrit    ana  wrong    of   the   possesniony   Ixut 

52 


to   orily  xnaJre   the   poeeession  rightful  by   the  possesTiLon  Orf  a 
certificatec      Defto   also  had  the   crimLnal    intent   for  she  voir* 
untarily  held  the   goods;    therefore    she  has   the   C ornmon  Law  el- 
ment    of  a-  crime  arid   she    orily  made   a  mistake   of  laisr,  which   is  < 
no   excuse J 

REGINA  V  TITIKLER,   p,    285.         Ij'td.ictment  under  a   btatute 
for  taJjing  a  ward  from  her   guardian^      Defence,    that   deft,  -ac- 
ted because   he  had  -pi-ouiised  her  father  to   tal^e   care   of  hero 
H£LD,    although  defto    acted  without   a   ri^ht  j    yet    if  he  hone'»<ly 
beXifived.  he  was   entitled  to  her   custody,   he   should  be   ac- 
quitted. 

This   case    is   not    supportable    on   the    groixruis   stat-ed  as  the- 
taking  -was  unlawrful  and  deft<,   nvade   a  mietake    of  lay/    and  not 
of   fact.      If   this   case    is   to   be    supported  it  must   be   on  the 
grourid  that    defto    di.d  not   know   the   girl  was  under  guardiarushj^ 
Which  wouJ-d  then  be   a  niistake    of  fact» 

REGINA  V  TOLSON,   p.    236,        Def t c   was   convicted  for  bigamy 
xinder  a   statute.      Deft,,    on  reasonable    grounds,    believed  her 
husband  was   dead  but  he   returned  v/ithin  seven  years,    the  time 
alloAred  by   statute   for  a   second  marriage,      HELD,   a   statute  may- 
be   interpreted  as  making  an  act    crimirial  v/hether  done  \Tith  a 
criminal   intent    or  not,    or   it  may   require    ci'lminal    intent,   ani 
the   proper   interpretation  must    be    decid£.d  froa  the    subject 
matter  and  the   various    circums  taj'.ices   and  not  merely  from  the 
words   of   the   statute.      In   the   present    case    criminal   intent  was 
a   requisite   and  therefore    conviction  is   qiiashed. 

There    is  a   bona   fide  mistake   of  facts  here   and   so  no 
criminal    intent   lu-iless   the   legisj.ature    intended  to  make   the 
act   a   crime,    regardless    of   intent,  \fhich   it  had   the  power  tQ 
do.      The   case  as  decided   is   quite   simple   for  there  was  a  mis-» 
take    of   facts,    v/hich   is  a   defence    at   Common  Law,   and  there 
was  nothing    in   the    statute    intended  to    do  away  with   the   Comaon 
Lav/-   requisites   of   intent. 

M£Y£RS   v  STATJE,    p.    302,        The   charge   against   deft,  was 

for  allowing  par-^ieg   to  travel   in  his    coach   in  violation  of 

the   Sunday  law,   which  o-rjly   allowed  letting  a   carriage    in  ca^se 

of  necessity   or   charity.      Deft„    believed  he  wag  letting  the 

coach   as   a  matter  of   charity.      The   court    instructed  that   to 

justify  his   act   as    a   case    of  necessity   or   charity  deft,  must 

prove   the    same    and  th,at    the  mere    represeJit-ation  of  the   paasen-' 

0ir  without   proof  was  no  justif ic-Qtion,     HELD,    the   jury   shoiili 

have   been  instructed  that    if  deft,  h*ad   peasoriable  grounds    tp 

beiieye   from  the   represeniat ion  made    %g  him  that    the    case    of 

oharMy  existed,    and   if  he   acted  honeatly  under  that    iija^i^e^** 

sion,  he  i§  not  guilty,  < 

53 

J- 


BlWJjtlY  V  STAT.3^    p o    303.        Deft.,   wa?;    Indif-.ted   on  a   statute 
forbiddlnc    anyoi'ie   froiii  harboring:  any   black   or  mulatto   pGr&orij 
the   property   of  another-:      The    indictment   did  not   aver   that 
deft.   Jvne-tJ-    the   far,t&  alle£,edo      HELD,    tuth  knovjle^dc;  mutst   bo 
averred   cr  proved  even  though   the   statute   omaiotted  the    scien- 
ter and  a3.thou-i-;   the    indiotment    covered  aj.l   the   faots   of   the  ■ 
statute  3 

The    r-.rjly   oriticjieiji  of   this   .-jaae    i-,;   on  the  plaading  for  it 
goes    too   far    .\^.  ftaying  that   a/.-,  averreuient    oi?  i,novladge   is 

necewsary   in  the    indi  ci'oniont ,,   foi-   that    i»*   no'-    fK>  >      But    the.   eaae 
is    ri5;-.t   a-rf    a  r,..atter  of    sub  y  t  ant  i  yo   .lav«%      The  vie    la'jt    .vayes 
have   been  rai'-stakes    of   fa^'n-   and  &uc;h  miatfi.kesi'  have  been  rif^t.ly 


CO?vlIvIONV/.eALTH   v   LIASH ,    p.    304  o         Indictme/.t    for  marrying   a 
second  husband,  within  ^even  years  while  her  fonr»or  hu^j-baiui 
was    livingo      She   beli^aved  her  first   husband  to  be   deado     HELD, 
the   iav/    intended  to   fix   «even  years   of  absenc-e    of   the    firut 
hue: band  ae    th?i    only    sy.euse    for  marrying  again c      So   if   a  '/iMiQan 
marr;?:es   vvith:in   stven  year;:   after    bhe    SL^ddon  dieappoarunce   of 
her  husband  and  he    is    ctill  living.    «ho   Is   giiilov   of   big  i^y 
for   she   married   at    her    own   riek:> 

The   facts    in  this    oaae    are    the    same   as    in  Regiria  v  Tolscri 
but    the   des'iuion   is   different.      T]:e   stati^te    either  means   to 
punit5h  all   those   knowing   or  siiepetjting  their  husbands  to  be 
living,      that    j.Sj,    in  c oriJ-iO c t i on  \7i  ch  the   Comruon  Lav^   to   excuse 
mistakes    of   fact^    cr    it  means   that    all   per^ont-  marrying  vvithin 
ce-ven  yeari^   do   v;o    at   their  peril:    there    le  no  aiiddle    grf)und 
as   there    i'.i   nothing  in  either   statute   to   lay  any  fcuTidation 
for  a  -d.istincJtion  according   to    thxe   reasonabianes'5   of    deft--s 
belief,,      Seals  "sayi;   the   :r  eal  obic-t-t    i-;-:   to  ericourage  oaar-riages 
arid    to    i:;et   a   tiji^a    after  ivhidi    !^hey   will   te    allowed  I:-;  any 
event  J,    and    that    thero    is    no    Ooca«ioTi    to   keep   the   deft^    nlx:^^e 
on  accjount    of  a   case  -^^hiwh   rarely  orscur?. ,      O-'.sntiequently  Eea.le 
thinkvJ    the    objeot   of   ths    •■/■(  at  uten   referring   to  bj.ga.rr,y    is  mere- 
ly  to   pre-yont    sec-onJ   aiarrlageH  vrt;ere    there    ii?  no  foundation 
of   rightj.    and   th^at  rAietakop.    of   fact    should   exisuse   the    game    as 
in  COaIMON  1PM  TrUv^-i^      No    state  has   gone   as  far  at  Mase^    in 
this   case ; 


j.r    tl-ii'f?   isai-je   can  bo  uphe'ld  it  imjiiro    '   ■       \.  ..'..L,'- 

lature  wishsd   to  puj-is-jl:.   the    r.aXe   of  .';.iqy,.(  ..  ...   la-- 

t.ent»      Eeale'H   pc-;i-':ion   iri  r'Oj^ard  to    or3.c:,i ;:„...:    :: .-    ...:.  v/J-a^ 

tutory  cffenyea   iri   that   every   s'-.atutc    PhouAo   be   it;.for-e5d  ^ust 
as    it,    XM  paeaedj,    and   3.f  the;/o    Ih    no    '..".■  «ut)';    doirig,  avay  with    viiS 
CoiuTion  Lav/    clemen-    oT   .Intent^    the   c!.bEC]:iC.s   of    .It   throUfV.j,  inis'-''   ■ 
take    of   fact,    insajiity,    infancy^    or  any   of   the   Corj?rion  Vur    liB'-' 
fences    should   e^cuye..      But    in  rnoot    jurisdictions    tiiere   arfe 
SDia.1,1  police   offencec  pixniEhable   by   a   fins   and  pertain  offon" 
ces    Buch   an    Coxrmon   Lav/  nuisances,   ^7hich  never  required   intentj 
that    are   punishable    rerardle'^'j    of    int  ent  =      Beale'g   idea   13 
that    these  J.   like  nuisancer „    are  noi-e    like    tc't?,    than,  crjrnee 
and   that    the    J.dea   of   the    lav/   is    to   det^l  with   them   so   as    to    get 
coirjpen'5at  ion  for  darna.ge    done,    as    in   torty,      Biit   the    pubj.ie    can 
only   proceed  by  an   ind.ictnent    and   the    indictment    in   the®^ 
caees    i>5   not   merely   to   puni'.^h   the    crimen    but    ie    the  method  of 
obtaining   redreys    for  the    Publi^::,.      Vfiiere    the    pvvrii  BhoienL    is 
irupriEorinient    and  not    a   fine    tjii  s   argunient   will   not   hJsXd  be«" 
Rau5e    the    idea   of   compensation  cannot    be    found   in  a    c:avie    of 
imprisoriment  .J      There    is   thus    a  vaguely   e^cablished  .iiatincticsa 
betiveerL  v/icke-d  acts  5   and   indictable    offences    m   the  nature   o.f 
a    civil  v/rcng^      There    are    a    fev   of   thesse    latter  at    GO.MT.ION  LAW 
of  v/hich  cocmon  nuisaricet;   are   the  most    important,    bub    r.tat'-^ 


liquor  licences   iri  this  v/ay   this    case    is    supportable  r 


4' 


GOMiaOI-KV.i3ALTH   v   THOMPSONj    p-    308,.         Indictment   for   adul- 
tery 0      Defto   had  m.arried  and  lived  v/ith  one    as  his  v/ife  who.ca 
he   believed,   to  be    a  widov/  ';7hen  he   married  her  5   and   she   did  not 
know  her  hus-band  to   be   livirjg,    as    she   h^ad  not  heard   jf  him  for 
eleven   years.      The    j-udge    iristructed  the    jury   tr^t    if  her  hus" 
band,  v/as   living,  deft,,  v/as    guilty,    regardless    of  his   belief^  " 
HELD,    the    absence    of   criminal    intent    on   the   pai^t    of    th^    defto 
is  no  excuse 5    but   tl-^e    first    husband  having  been  uriheard  of  for 
over   seven  years    j.s-   supposed   to   be   dead,    and   on  this    gro"and 
de f t  c    is  not   guilt y^ 

The  bigamy    statute    says    that    if   the  husband  leaves    the 
v/ife    ard.    is    not   heard   of   for    seven   yeaa-s,     she    is    not    guilty 
of  bigamy   if    she  marries   again,    but  here    the   v;ife   had    left   the 
husbando      However 5    this   point   v/as   not   noticed   in  this    case, 
but    the  v/oiian  was    af ter-ffai'd.   convicted   of   aduliery  on   this   ac-^ 
couTito      But    the    adultery   statute    is    the    question  in  this    case 
arxi    that  makes   no   exceptions    as    to   time;    .hov/everj    the    second 
court   iield  that    the    bigajriy   statute    also   excused,  adultery  ^  af-- 
ter   seven  yearn,    but    that   within  seven  years  the    ruling  would- 
have   been  the    same   as    in  Gomn-ionwealth  v  Mash,,     -The  rnlirig  of 
the    lo./er   court    shows    the   absurdity   of  the  Mass  „    doctrine    if 
carried   out   to    its   logical   conclusion.      The   --'easoning  of  the 


)D 


// 


MasSo  court  in  Coxncaonwealth  v  Mash  and  in  this  case  iZ   the 
events  had  been  cor/xuitted  within  s-even  years  would  not.  be 
followed  in  any  other  jurisdiction. 

STATE  V  GOODENOV;,  p»  309,    Defts.  were  jointly  indicted 
for  adultery,  having  cohabited  as  husband  and  wife,  while  the 
woman  had  a  former  husbajid.   Defence,  that  her  first  husbarui 
had  married  again  and  that  the  justice  of  the  peace  informed 
fcbem- -that  they  had  a  rii^ht  'to  intermarrj'  and  that  they  acted 
in  good  faith.   HELD,  deftSc  co^iaiitted  an  act  in  itself  unlaii~ 
ful  and  ignorance  of  the  law  is  no  excuse. 

This  is  a  clear  case  as  it  is  a  mistake  of  law « 

SUMLIARYo   The  true  principle  as  to  intent  in  statutory 
offences  is  that  the  statute  deals  orily  with  the  act   and  not 
with  the  intent  except  by  express  terms,  for  what  a  statute 
does  not  reach  in  express  terms  it  does  not  reach  at  all. 
Therefore  if  one  acts  violation  of  a  stattite  uTider  a  mistaJce 
of  facts  he  is  excused,  v;-ith  the  following  exceptions:-  first 
when  one  attempts  an  act  which  is  on  the  border  of  the  crime 
he  ruriS  the  risk  as  he  voluntarily  does  an  immoral  act  init- 
self  Vifhich  supplies  the  necessary  intent.   Second,  matters  of 
police  regulatiogi  do  not  generally  require  intent  as  these  are 
really  public  torts,  such  as  liquor  cases,  nuisances,  etc-o 
Mass.  is  the  oruly  jurisdiction  which  holds  that  the  G-oomon 
Lav;-  defence  of  mistake  of  facts  is  abrogated  as-  a  rule  by 
statutes  which  do  not  expressly  state  the  facts. 


CHAPTER   NINE. 

JUSTIFICATION. 

Although  a  man  voluntarily  does  an  act  which  is  criminal 
and  all  the  elements  of  a  crime  are  present,  yet  under  cer- 
tain circuiiistances  he  may  excuse  himself.   The  burden  of 
proof  in  criminal  cases  is  always  upon  the  prosecution  to  shew 
the  act  and  the  intent,  but  in  cases  of  justification  both  of 
these  elements  are  present  and  justification  is  of  the  nature 
of  a  plea  in  corjfeasion  and  avoidance,  although  of  course  in 
crixnirial  law  it  all  comes  iu   under  the  plea  of  not  guilty, 

SECTION  ONE.    PUBLIC   AUTHORITY. 

■  REGINA  V  LESLEY,  p„  311,    Indictment  for  false  impri-son- 
ment,  x  had  been  banished  from  Chili  to  Englarjd,  and  deft,, 
being  master  of  an  English  ship  then  in  Chilian  waters,  con- 

56 


tracted  vn.tli  the  Chilian  eovei-rtiiont  tc  cari-y  X  and.  ethers  who 
had  been  banishod,  to  Liverpoo3.o  -  HELD,  d.ef t ,  can  justify  all 
that  he  did  in  Chilian  waber-s  as  the  at:ont  of  that  goverriinent 
and.  ^under  its  authority;  but  as  to  ai-itg-done  on  the  high  seas 
defto  is  subject  to  tlie  .  jurisd.i  Cition  of  EnG..T.anri,„  Although  he 
was  justified -in  roceivlng  the  prisoners  i?i  ChiJ.i.  that  jus-- 
tifi"-sation  neaped  when  lie  passer],  the  line  of  Chili a:-x  jiirisdie- 
tion'c  ...  ...  .  , 

Bea.le    thinl^s    the    cat^e   -firong  .from.  th.e    facta    Btat.fDd>,      .A.  main 
is   justified   in  doi.ng   sn   act   according   to   the'  lav/s   of    the    stafe 
in  whose   jurisdi.ction  hs   dees    it  ^    and  so   deft, -was    jui^tified  - 
ViThile    in  Chilian  v^atersj      There    is  rjioth-in^;- to   sh o.vr  that    deft, 
exercised  any   restraint  'on  the  -  prosecutor   after  .he   g'.it    out   of 
Chilian -waters,    for  deft;   was  urjder  no   obligation    i"/0   alj.Cu'  h.im 
the'- use   of   his  boat   ei?  to    taJ^e   any   active -measures   xo  help  him 
out,      Ihe  point    is   that  the  pyosecutor  W8.s-  not  prevented  from - 
using   any   oiMinary  means   to    get    on   shore ^    as   at   the   O'ti-nt   of 
the   Azores  where   the    ship   stopped/  there    is  not^iing  to   shovff 
that    other  passengers  were    let    off;      The   decision   is  put    on 
the   ground   that  -false    iiiiprisoniuent   began   the  moment   the   boat 
crossed  the    Chilian  line;    but   Beale   thij.ks   the;   difficulty   is 
that   deft  c -did  not   acts -at   that   t-ime,    an  he  had  used   the    in-- 
strument    of   imprisonment    -  the  v/ators   of   the    Sea  "-in  Chili  ■ 
when  he  had  the  pxght   to    do    so;    \riien  he   crossed  the   line  he 
had  no-choice   at   ttxat  moment   v/hether  the  traters  'should    stay 
around  the   boat    or  not,    and  be    did-    no    other -act  o      The   onls' 
act  he   did  was    perfectly   justifiable   at    the    time  he  did- It, 

-.     .    _  ....  -  .  /^      w  /.. 

STATE  V  MAYOR  and  -ALDERI.!£iJ   of  KNOX^/ILLEj    p.    313 „         In- 
dictment  for    a  nuisaJiceo      Knojcville  was    inflicted  wi.th  small- 
pox and  from  time    to  time    clothing,    beddinr,,    etc,,   were   bumod 
as-  a  precautionary  method  to   prevent    its    spread,    ami  plaintiff 
who  lived  near  was   afflicted  by   the   smoke   and.   F>e5?nt  o      HELD, 
the    question   is  whether  there  was   sufficient    jvistif ication-and 
authority  for  the   act    done ;    it  was  proven  to  be    the  best  known 
mearis    to   prevent -the   epidemic   aiid  was   done   i'or  the    public 
safety;    therefore   it  was    exciisable . 

This   case    is    siaiply   ari   example    of  what  may  be   justified. 
under  public  necessity.  ... 

SUMMARY-,        Everyone    is   justified   in  obeying  the   lawful 
corotaands    of  the  goverrjment  within  whose    jurisdiction  he   is, 
but-that   justification  is   good   only    so   long  as  he    is  witi^in 
the  t&rritorial   jurisdiction  of  that    govemuent   -  Regina  v 
Lesley,      So   too  many  acts  which   are  harmful-to   some     'may  b®/ 
justified  under  piib.lic     necessity  •-  State   v  Knoxvilles 

57  •  . 


Si'r-'^ioiT  '"-Yo.       do:.'j:^?ic  ali'^^o:^1"v 


• 


REGlilA  V   a'^.lF?i:i,    p.    315.         Indic 'iriient   fo;^  iuarislaarl.teiv 
Deft.,    fairer*   of  tYia   deceased,   wLo  v;a3  a   c..ild   Vvro   yeaa'3   old, 
£,ave  hev  a   niAuiber  of   Surokes  uit;-:   a  la:'r^a    "Sbi.-'ap  as  a  i^uniSk- 
jiient    for  a   childiiJli  faj.it.     H£LD,    the   law    as    So   corracoion  has 
i'efei'ence   orii„    to   a    child   capaijle    of  appc'eciaiiri:,,   sac  i  arid    -he 
orii.    que S-- ion  fov    ii.e   ju.'y    is  v/hethe.'    >ha   deaiJ.  v/as   accelera- 
ted oi-   caused   by   the   blov;-s»      Veydic". ,    ;;-.ihty, 

Parerits,  uiasiCi'S,  and  ot/iex-  persons  .-.avin^  au'^ho-'i'sy  in 
fOi."o  dojiiestico  li'iay  give  I'easonable  cor^-'ection,  but  if  i  i  ex- 
ceeds due  uoderatioa  they  are   liable   foi*    ;:-he    consequences* 


3i::cTioM  t-:r££,      P'^j^vENTion  OF  j'ELony. 

?.£::  V   COI,.PTOiT,   p,    316.        Deft,   •;:7as   co.-u.iissioned  by   a 
3;..ei'iff   to  ar^'est    X.     Arid   in  the   attempt    to  ari-est,   X  resisted 
a/id  vas  Isilled,     TiilLD,   deft,    is  not    guilty   of  hOx.iOcide, 

'A'e  i./as  t   distinguish;-  first,    acts   done    in  cd^rryiru^  out 
public   authority,   '-^hich  inay  r.s   divided  into,   arrosts   v/iti:  a 
warrant,    arrests  './ity-.oui   a  v/arrant,   and  acts   done    i/i  preven- 
tion of  a   feloi-iy;    a/id   second,    acts    in  private    self-defence. 

This   case    is  /lOt    one    of  simple   arrest,    but   ari  arrest  -.yith 
a  warrant.      There    is  not  iivuch  aiLth^orit;'   on  this  point,   but 
what   there    is    is    to    ohe   effect    that    a  v;a  -rant  ii.ay   be   executed 
vith   the    greatest   necessary   anoiirit    of  force,    oven  to  .killing, 
regardless   of    the   extent   of   the    crL..e;    t,;i3   is   Oii  the    theory 
that    one   who   resists   an  officer  with  a  warrant    is   resisting, 
the   aut..ority  of   the   law, 

HxirTlIJA  V  DADlOh,   p.    317.        Deft.,    a   constable,   having      ^"^^ 
been   ei^ployed    to   £,uard  a   copse,    ordered  X   to    stop,    vf..o  was- 
coiaing  out   of  the  place   wit'i   stolen  v.'ood,      X  fl^id  and  deft, 
fired  at   and  wovuided  him.      hflLD,   X  not  having   conxdt  te-d  ar^y 
felony  isnown   to  t:.e  deft,    at    the   tL.ie   of  his  act,    deft,   was 
not   justified  in   shootinr,. 

Deft,   was  iiot    serving  a  wa.-rant  i-.ere,   but  he  had    the 
authority   to  make    ari  arrest,      lut    this   case    is    to    the   effect 
that    if   the   act    is  riot   felon^    to  his  };nowled£:e   an   officer  can- 
not  kill  -.vithout  a  warrarit ,   as    even  in  the   old  la^    it  was   not 
legal   to  kill   in  an  atterupt    to  ari'eat   for  a  iaisdeuieanor. 
Deft,   could  not  hei'ii   set   up   the   excase    ty.at  he   was  killinr,   in 
prevention  of  a  felony    if  he   did  not   know   t..a:   a   feloriy^  was 
conuiiitted. 

Who   can  arrest  without  a  warrant?   - 

53 


U^ 


i.      Any   2"ei'3L//i,    ari   orficc;.-"  oi*  o  i:.'3-*7i33 ,  r^ay  ;.iake   an  a.'i-e^v 
i.'i   caT-    cf  a  i'alon,;  ,        •   i?i  casa   a  jTo'i.ony  "..a?  bceri   cojuviii -ed 
and   there    i7   --oaiona^J^o    __ro'.-.j'id  i"o-'   3uni:eciin;^  a   ceriain  i:ian« 

2,  A  peace   oiTiccii-   can    ..c^^   an  a.'-'j;''':   v/iiiiout  MSa'.-a.it'  in   case 
of   fer,orii3s   ajid   o^:.'iain  i.ii3^*e:,.oan3:*^   du/it;    in  ^  i^    •^i^^it, 

3,  i:y   Tiatuies   a.-id   j.-dir.anccs   j.;:ac-   aiia  police-   ci'i'ijex'3  have 
i-.T..  c. .  1  a  j.-.^  e  .^  p  o"./  e  -• . 

We   '7il  .   nov/   «!v.ppo30     ;..,6   ivji'son  ar:-e s t-in;^  ^.aa   a  ..tt^ah 
ai\t-  o''if-,y   ■^,0   do    ^o  and  v/\3.".    cor.-^^ido'.-  v- eri    '  e    can  kil'    a^  " 
ias'i    j-'esort .      In    ;  .e    old  la./    ^....e   line   was    drav/zi  a;   felony,    aa 
"ii.e   p'-jTii ^-a-.arri   fo./  all  felonies  v/as   deah.  and    ihe   felo.n  v/as 
considGi'ed  as    one  who  ..ad  already  forfeited  hi3  life;    so    it 
v,'a3    a   jus  :if  ica:ion    :.o  i-;  ill  us  rely    :o   arresi   a  felon  and  not 
3iiapl_     in   ca333   of  pi.'sven'^ioj'i  of  felon,/   or  in  arrests  with  a 
warrant.      The  lav/   is  very  i.:j.c'.:  al'^er^d  at   present   and  Beale 
thirdis    r.h.a-:   nOv;    iherc-    is   no    .-irh'h:    to  xiill  merely    to    prevent 
an  escape   fi-O:..  a-'-'Os:,   and    h.at    ': .£    '.;'.ole    doctrine    is  prac- 
tically   lOiiO ,      ?.:era  :..ay   h-j    a?;  exception   in   the    case    of   a 
capital    crLi»e,   but   l^ale    ;::.iiiK3   '^\-ei^i:    case    \,'l\e:cQ    one    can 
shoot    to  iuake   an  arres:   i.^ay   be   br:.ah-:  "ander    tyjs    rule   that    one 
iiiay    3hoot    to  prevent    the    Cn-plstion  of  a   felony;    the   vcCe   for 
this   pui'x'ose    as    to  \.'.'..,en   t.o    felony    is   coi.ipleted   is  not    the 
technical   rr.le   as    to   \A.e:i  a   criHiO    is   coxaiiitted,    but    is  :.^uch 
broader;    as    i/i  bi:r£,„ai-y,   althoar--.    tyie   burglary   is   coi.ipleted 
as    soon  a=5    t  .e    offender    yets    o:'je    finyor   in   the   house,    yet   for 
ty^  is    I'j:  .  e    ^y.e   fe^^on.    i3   r.oi    c^.Vipleie   uritil   th^e  bur^^lar  gets 
away.     lat   this   x'ule    13  also    iii.xi -.ed  and  at   present   to  justi- 
fy  a  liillinr  even   Lil  prevent ior.  of  a   felony,    ti:e   felony  criust 
be   one   a,^ai>i9t   a  perio.n  or  against   a  dviellinr,  house,    and   so    it 
does   .not    include    such  felonies   as    "^I'ceny,    forgery , 'perjury , 
etc.      It    is    iji  all   cases    h.r  oi*iL.ni    to  notice   that   killing:   can 
never  be   justified  except   as   a  lant    resort.      Also  a  nan  when 
he   uses  a  weapon  da.n^erous    -0  life    caririo  i    set   up   as   a  defence 
that  he   onl:     int   nds   to   cripple   arid  not    to  kill. 
Storey  v   "tate,    71  Ala.,    322,      Held,    tha  ■,   a  itillin^^   cariTiot   be 
justified   sii-^ply  because    it    is    :he    only  way   to  j;et   back   a 
L.an '  3   p  I'op  e  r t  y ,  ^^ 

T^EGlilA  V  LiURPIiY,    p.    310,        Deft.,    a   ^.anie  keeper,    det-ected 
X  takinr  av/ay   a  buridle   of    sticks   froi..  his   e;-iployer's   larid,      X 
havin,y  atte^upted  to   excape,    deft,    called  ori  hLn  to  halt   and, 
not   doin,^   so,    .vou/ided  hia.  with    a    shot.      H£LD,    it    is   an  exceT^ 
of  the   le^al  pov;er    to  arrest,    to   ioperil   ty.e   life   of  one   com- 
ijiittinr   a   trespass    or  larcerry,    i"or  w-.icy.    the   legal  penalties 
are  i.alder   thari  death, 

U.    S.    V  'CLA'^Jv,    p,    319.        Deft.,    a   'J .    3.    soldier,    killed 
anotner   soldier  v;ho  had  been  c our tmarsi. ailed  and  sentenced  to 
labor   in  a  lailitary   p^-isori,    but   after   sentence  was   attenipting 

59 


/x 


to   escape.      ''LL'D^    t-.-.c-   Coi.A.iOn  Law   .J.i=3*^i/iC  iij/i  betv/Gon  felonies 
and  x.-ii3clei-..oa.norB   does  ;iu'^    exi3t    iii   ca^os    ox   j;iilii.ai'y   service, 
end  defi'a   act.    ±3   oxcvi3i\'olc    if  pe-'for..iOd   in   coiO'ipIiarice  vith 
;.is    3xir:  0  3od  dut^y  as  a    soidiei*,   p.'ovided  "ti-.ai  he    ac''"/ed  in  r,ood 
faith  and  v/itLovib  i..alice   and   if   the   aco   was  no'i   beyond  the 
ecope   of  hig  authoa'ity  and  v/as    3uc]~.  as  an  oi-dinary   ruasonable 
man  vvTo'old  j  udr,e   to  bs   leral, 

'"e  \7ill  v.-aive    the  iviilitary   aspect    for    the   present   and 
suppose    it   au  ii-^prisoriinent    in  ari  ordinary   jail   arid    that    the 
killinfT  was  done   to  p>'event   an  escape.      There    is   a   difference 
here   frox/i  fonner  cases   because    trie   very  act   of  escapinr   is  a 
criiTifc   of  hifi^i  macnitude,    arid  besides    the   keeper   of  the    jail 
has   a  warrcj'it,    it  might   be    aaid,    for  keapinc  a  man  in  jail  as 
he    is  put    there   by  the   state.      3o   even   if    the  jailor  ijnows   the 
u.an  escapinc   is    in  prison  for  a   small    offence,   L'eale   thifiks-  he 
has    tha    ri£j:it    to  erd'orce  his   office   by  killing   if  necessary. 
The   point    of   this   bein^  a  military    offence    is   also  an  import- 
ant  one.      There    is   sa^riC   co.-iflict.,    but    the   better  vievr   is   that 
the    coiiiiuand  of  a    superior   officer   justifies  an   iriferior  when 
the    coniiiiaiid   is  aparentl;.    a  proper   one.      Some    cases-  go  farther, 
however,   and  say   the    comuiarid  must    be   legal   in  fact. 

S Ui.MARY .        Any   persori,    even  a   stranger,   has    the    right   to 
prevent    a  felony  when   such  would   involve    great   danger  to   lifa 
or  limb    of   the   person  assailed.      But    the   persoii  must  have 
reasonable    grounds    for  believing   in   such  danger  and  mere 
bona   fide   belief  will   not    exe'use,   for  here   the   act    is   done 
with   intent   and  as    it    is   justified   on  grourids   of  public   policy 
there  must   be   a   reaso.nable   belief.      As   to    the  prevention  of 
excape    the   general    rule    is   that,    if  any   one  has   the    right   to 
ar-'est  he  has    the    right    to  use   the    same  measures    to  prevent 
ari   escape   as   an  officer   of   the    law  v/ould.      B^it  homocide    is  not 
allov/ed   to  prevent   escape    in  case    of  all  kinds   of   felonies. 
But  we  must   remeiuber   that    escape   froi;:   iiiiprisorjment    is   a   dis- 
tinct   felony   arui   the    justification  for  this  does  not   rest    on 
the   original   crime   as    that    ci'ime    is   over;    and  as   a   general 
rule  a   jailor  may  kill   if  riecessary   to  prevent  an  e-scape  with- 
out   regard  to   the  magnitude    of   the    original  offence* 


SECTION   POUR.         SELF-)  DEFilNCi:, 

ANON,    p,    329.        A,   having  malice   against  B,    assaulted  B, 
and  upon  B's   drawing  A  i-'etreated  to   the  wall   and   then  turned 
and  killed  E,     HELD,    this   is  murder  because  A's  device   to  flee 
to    the  wall  and  then  k-ill ,  having  malice,    rather , aggravates 
thari   excuses  his   crime, 

60 


~^£i.ll]k  V  KiJV^LZT,    p.    329.         Indic  tu^eni   foi*  wovindinr;  v/ith 
intent    to  do  r^i'ovous   bodily  haru.      Deft,    sir  ick   at   ons   X  with 
a  kriifG,    a/id  the   pr-osecutor   intarfex-inr,,    cau,c;-.t    irs   blov/  on 
Lis   aiTii.      ""iiLD,   deft,   would  not   be-   justifiod  oyl  t'/.e    ^.r-ound  of' 
3elf-d9fonce,   iinloas    ha   appreheridtid  los3   of  life,    I'Dbbai-y,    or 
sex'ious   bodily  ha-^ia. 

'  A  nan  nciy   kill    to   prevent   death   or  vei"]'    3erioiA3   bodily 
ha.Tn.      ""he  re  must    be    ari  ho]i::-3t    belief   ti-^it    such  v/ould    result, 
but    the    belief  neal  not    be    tirjxt    of   a  r.asonab/te  n;an.      Althougjn 
the   plea   of   Justification   is   not    concerned  with  the    crin:iinai 
intent,   Deale    thirJo  the    doctrine    of  mistake   of  fact   coii.es   in 
to   help  deft '3.    justification,    ana   tliat    it    is   an   over  refine- 
ueu'c   to   distinguish   it,   fi-ofu   other   ca^i-^-s   on  mistake   of   fact. 

'3::0^T'£'^  V  FiLOPL£,    p.    £30.        The    court   charj:ed    the   jury 
that    to   justify  the-  killing  there  must   have  been   in  fact    imii-.i- 
nent    danger  to  deft,      HiJLD,   -i^hen  one  without   his   fault    is   at-- 
tacked  and  th.ere    is   reasonable    £,rouj-id  for  believing   in  the 
existence    of   iiiuvanerit   personal   dan£,er,   hox.iocide    is   justifiable 
althou,';.    i:   af^erv/ards   be   proven   that  -t..e    ai^pea'ranc^s        were 
false.      7he    charge   ,V3.5    therefore   v;rong. 

This   cage  has   dicta   that    the   belief  i.iust   be  reasoriable 
but    tlie    quefft  ion   is  not    involved   in   the   de.cision.      However,    a 
bona   fide   belief   is    sufficient.      Of    coarse    a  u.a.n  must    act 
honestly   according   to   his    own  mind  arid   so    if  he   kills    through 
cov/ardice  v/ithout    thiiiking  whether   tnere    is   dariger   or  not  he 
does   not-  act  honestli-;    so   one   acting  negligently  does  not    act 
honestly, 

3T0FF£'l  V  STATE,    p.    33'5r.        Deft,  laade   an  assault   upon  X 
with  an   intent   to  miirder  him,      Before   X  had   received  a^^y   in- 
jury deft,   desisted  from  the    conflict    and  retreated  in   good 
faith   into   a  house,    but   X  pursued  him,    arid  deft,,    to   save  his 
own  life,   killed  him  without  malice.      HELD,   ';?7here   one   v;ho  has 
brougiit    on  a   cortflict   wholly  withdraws   in  such  a  way  as    to  re- 
move any  apprehension  from  his   adversary  he    is  again  entitled 
to   the   right    of   self-defence   • 

This    is   a   good  case;    the   deft,  honestly  withdrew  arid  it 
is   not    like    the    case   where   deft,    retreated  t-o   dra\T  his   adver- 
sai'y   ori  arid    so   get   an  excuse    for  killirig  him.      If   the    one   who 
provokes   the    figj-.t    is  forced   to  kill  duririg   the    figlit    he    is 
crir/.irially  liable;    but    if  he   horiestly   i\ins   avmy  arid   if   the 
other  party  then  follows  him  up   arid   coinpels  him  to  kill,    that 
is  ariother   fight   not    caused  by  hixiiself.      The    retreat  must    be. 
such   as   to   shov/    the    other  party    that   he  has    abondoned  the    fi 
figiit   and  if  he  was   r.ierely  pressed  back    it  v;ould  not   be   suf- 

61 


ficicnto      The   docbrine   of   i'eti-eat    to    ''Aio  wall   co:ncs   in  eapt-c- 
iall:'   v/hei-i   Aie  party  who  kills   has    pi'ovoheJ.  the  affray. 

STiVTi;  V  DOMiI£LLY,   p.    S33,        Deft,   v/as   indicted  for   shoot- 
ing his   father,  v/ho  was   pursuing  hiir:  \7ith  a  pitci:forko     HELD,  • 
it    is    a   general  rule   that    the    party  assaulted  iriust   ret  ■.-oat   to 
the    wall  before  he    can    take   life.      But    if   such  retreat   would 
put  hii:i   in  Lianifest   danger   of  his   life   or   of   great    bodily 
harm  he    is    not    required  t-o   retreat.      Deft,   here  rr.i.';;it  havrj   e-^r 
caped    safely,  without  1-^rm, 

If  there    is   a   safe  way  of   £,etiin,c  av/ay   deft,    cannot   kill. 
Also    if    it    is   a   question  of   sufferino  3li(-;-t    inconvenience   he 
carinot   kill,    as    if  a  man   stands   on  the    sidewalk   arxd  tells 
deft,    that    if  he   doii't   walk   out    in  the    stret  he  will    shoot 
him.      3o    it    is    a   question   of  d££,ree    in  this    sense    arid  the 
point    io  be   decided   is  whether  the    justification  is   sufficient 
to   coridone    the    injury    to    the   Public    in  Ijivin^,  the    citizen 
killed.      This    quest  iori  of    retreat    is   not    the    same  as    the   one 
of   retreating  to    the   wall  v/hen   the    pariy  who   finally   kills   is 
tlxe    one   provokin-;,   the    affray.      The  doctrine   of   retreat   in  this 
case  merely  applies   to   decide  v;he/i  a  kil-inr,   is   necessary,  arJ. 
ohe   question   is  whether  dc.Tz  »■   is   bound  to   take    soiriC   other 
nieans   of  avoiding      the   vlan^or.      Perhaps   the  majority   of   cases 
are   arainst    this   one   and  hold   thiat    if   the   attacking,  party   is 
making  a   felonious   attact   he   can  be    shot    ;7hether  deft,    can 
safely   retreat    or  not.   Beaie,   however,    thiriks    these   are   bad 
law  , 

CR£1';:."T0N  V   COiMI'.iOir."'i:ALTI[,    p.    339.        Deft,   while   resisting 
an  unlawful  arrest   killed  deceased,   who  was   attenptin'-^  the   ar- 
rest,     n£LD,    to   resist   sucn   ari  arrest    there    is    ti^e   ri^ht    only 
to  use    such   force   as    appears   reasonable   to   repel   the   saine,    aril 
in   such    cases  h0i.:0cide    is   justifiable    only  when  deft„   has 
reasoriablc    gro'urids    to  believe   t^-^at   he    is    in  dan£,er  of   great 
bodily  haiiic 

This    is   the   ti*ue  way    of  dealirig  v/ith   an    illegal   arrest, 
arid  the    theory    is   that    it    is   better   for   one   to   secure  his 
rights   by    an  appeal    to  law   than    to   kill.      The   reasonableness 
of  deft's  action  arid  not    tlie   fact    as    it    seemed  to  him   is    the 
rxiie   and  the    question   for   the    jury.   The  dictujii  that    it    is  jus- 
tifiable  to   kill    if   ari   attempt    is  made    to    carry  him  out    of   the 
coujitry   or  beyond   the   pale    of   the    la'jf   is   but    it    is   a  question 
of   degree, 

STATU  V  SHEPJ.IAN,   p,    341.        A  v;as  assai.ilted  by  B   and   the      ^ 
court    instructed  that   the    person  assaulted  must    retreat    if  he 
cari    safely,      HELD,   w.-iere    there    is  no  homocide,    an  assaulted 

G2 


person  may  deferid  IrJ-mselt'  by  using   obe   forua   nscessary   xor 
his  protection  and   is   liable    only   for  exoeedinr   such, 

law  and   i;   siiow-s   tiiat    each   step  may  be 
a   reasoriable  man  would   take  uj-ider  the 


This   case 

is    £,COd 

taken  by   deft , 

such   as 

circunistancoso 

SUI-.IiMAT/o        Self -defence    is   really   of  tv/o  kinds  ^    first, 
justifiable    self -defen/je  •.v:,.i.,h    is    in  belialf   of  the  porson  cr 
property,    and   if  deft,   has    reason  to  believe  ^e    is    in  danger 
?.e  may  kills    althourh.   it   afienvard  be  proven  that  he  had  no 
reason  so   to  believe „      Second,    excusable   self-defence ,      In 
case   of  a   chance  iuedley   or  i,.u-:ual  coriflict,    if   one   is  at/ i-a-cked 
he  may   retreat   to   the  -.ffall   and  then  may  kill   if  necessary o 
The    reneral  principle    is    that   life    c;an  be    taken  only  to  save 
life    or  £reat    bodily  harm,  and   that    escape  must    be    resorted  to 
UTiless    suci.   is   unsafe  „ 


Sx]CTICN  FlVEo      DEI^iiilCG   OF   OTHER   PERSONS » 

REGIIIA  V  ROSE  J    jJo    343,        Deffce   kj-llod  X  uiider  th«  belief 
that   X  ■tiras   about    to  murder  hiis  mother,      HELDj    if  defto   acted 
without   vi'ndictive   feeJ.i.nr    tov/ard  X^,   his   father,   but   believ^ed 
and  had   reasonable   f^roujids    to   believe  his  mother's   life   vftvS 
in  peril  and   that    the  fata3.  shot  was   absolutely  nece-ssary   for 
the   preservation  of  her  life,   he   ou£^it    to  be   escused, 

Def  t »  had  two  £^rourids  of  excuse  here:  first,  the  defence 
of  a  person  attacked^  ai-id  second^  the  prevention  o-f  a  felony, 
on  which  ground  even  a  stranger  would  be  .justif  i-edc  Vfaenever 
an  attack  is  uade  vrtuich  is  a  felonious  one,  deft<,  can  do  any- 
thinr,  riooessary  for  its  prevention^  and  ord-y  ^hen  the  attaisk  • 
is  not  felonious  is  lie  -oblii-ed  to  re?Ly  on  the  doctrine  of  de- 
fence   of   a    third  persorio 

PEOPLE  V   COOK,    V.    34-5^        Defto    v/as    convicted   of  man- 
slaughter.      Deft,,    contended    that    the   act    was  done   to   prevent 
the    seductiu:i   of  his   sir5ter  by   the   deceased,    but    the    evidence 
showed   only   that   there  was   reason  to  believe   the   deceased  v/as 
intending   to   seduce  hero     FELD.    to   justify   an  act   in  defence 
of  an  attempted  felony   actaal   force  must   be   displayed   creatirjg 
a  necessicy   of   iirmediate   acti  •/•   to    repel   the   sameo      Conviction 
aff innedo 

This   case   is   a   .'r.ood   illustration  that    the  force  used  in 
prevention  must    only  be  used  v.'hon  nec-essary  and  that   a  killing 
must    orily   take  place   as    a   last    resort « 

SUI.UuARYo        If   one   person  defends   another  who    is   a  parent 

63 


or  child  it  may  be  considered  self-defence »  but  sunh  ji^stifi- 
catiori  is  confined  to  the  relation  of  parent  and  ehildg  and  al 
other  persons  must  rely  on  the  rules  applicable  to  the  pre  vena- 
tion of  a  felony o   In  Retina  v  Rose  the  defto  had  both  these 


defences 


o 


SECTION   SiXo      DiiFi:KC£   OP   PROPilRTYa 

AIION,    p,    34Go        A  man  may   assemble   aid  for  personal  safe- 
ty   in  his    o'tni  house   for  his  house    is  his   castle,,      But   if  one    ■ 
in  threatened  that    if  he    goes   to   a   certain  place  he  B::ali    be 
beaten  he   carinot    asseble   persons   to  help  him  go  there    in  safe- 
ty»    for  he   rieed  not    £0o 

If    the  parties   are   both   inside    the   house    the   saEie   prin- 
ciple  applies   as    if   both  •'^ere   ..ut    of  doors   for   the  peculiarity 
of  the    defence    of   the   house    is    the   protection  afforded  by 
■four  walls" J   and   if   this   protection   is    in  dancer  one  may   use 
force   to  make    it   secure.      The   last   part    of   this   anonymous    case 
is  hardly  correct;    for   it    is   similar  to   th.e   case    of   the   Salva- 
tion army   -  Beatty   v   Gillbariks,    po    i05o      It    is   net   fair  to    say 
in  such  a   case    thai   deft.,    is  provoking  or   inviting  an  attack, 
for  he    is   probably  acting  purely   on  the   defensive „      So   it    is 
only  when  a  man  gathers   his   friends    together'  arid  goea   in  such 
a  way   as    to    invite   an  atiacl?    that  he    cannot    go»   for   in  that 
case  he   not    orxly   carinot    justify  himself   on   the    grourid  of  self- 
defence,    but  he    is   also    coamitting  a   crime    in   inviting  a  rioto 

COOPER'S   CASEs    po    317,        Deft,   was   a   lodger   in  the   house      ^' 
of  X     and  deceased  attempted  to   enter  by   force   after  threaten- 
ing X,   and   then  thrust    a   rapier  through   the  Virindov;-,    intending 
to  wouiid  the   defto>   whereupon   the   defto   .killed  himo      H£LD«   a 
lodger  as  v;eil  as    the  master   of  a  house   may   kill   one  who  is    - 
maJjing  an  assault   with   the    intent    to   kill    or  harm  the    inmateso 

The   rule    excusing  persons   v/ho   defend  a  house   by  killing 
is   /lOt    Oil  aci'ount    of  any  kindness    of    the  law  towards    the,  house 
as   a  :;ousej    but   because    the   dv/elling  house    is    the  means  every 
ma.n  has    to  protect  himse].f  and  his   fcunily;    his  house    is  his 
castle,    as    it    is   stated^    ard.    the   very   fact   of  being  deprived 
of  this    is    to  deprive  him  of   safety.      Therefore   it    is   oniy 
when  a  house   protects   a  man  that   he    can  kiH    to  keep   anyone 
out    of    it;    of   course,   ho/ever,    there  may   be    another  j  ustif  iea?- 
tion  also  J    such   as    self -defence   or  the  prevention  of  a   felony^ 
This   defence   does   not   apply  where    the    intruder  is   already   wi 
withiifi  the  house   arid   consequently    if  he    then  makes   an  assault 
which    is   not    felcriiovts  s,    deft,    cannot  killo      This   proteetiori 
also   orJ.y  extends    to  dwelling  houses,    that    is,   dwelling  houses 
in  the  wide    sense    of  what    is   used  as   a  perm.anent   habitat iori^ 

64 


and  not   such   as   a  rooiu   taken  over  ni£;lifc   afc   a  hoteXu      So   the 
place  must   be  a   dv/elling;  house    either  by  Comcion  Laisr   ased  actue 
lly   as    such,    oi"  niay   be  made    such  by   statutes   against  burglary- 
v;hich  may   constructively  make    cer-tain  places   d\7ellin-  houseso 
Ariy   one    iri^ide   the  house  may  protect    it,    but   Eeale   does   not 
thirik   that   th.is  protection  applies   to  keeping  a   person  out 
of  any   special  part    of   a  house,    ahen  lis   is   onee   in,   unless  it 
be    in  apartment  hovises   7/hera    fa-i-^ilies  have   separate   suites   as 
their  peiTaanenb  habitations,      OriO    is   notoi^liced  to   retreat 
when  his   dwelling  house    is   assaua, ted  and  he  may  kiJJ.    if  nee~ 
essary, 

V/ILD'S   GAS£!>   po    54 7c        X  refused    to   leave   the  house    of 
the   deft.  J    and  thereupon  defto    proceeded  to  use    force  and   gjave 
X  a  kick   from  v/hich  he  died.,      hZLD,    such  force   is   not   justi=- 
fiabie    in  revovin,'_  a   trespasser  and   if   the   deat..  w^s   caused- 
by   the  kick   defto    is   guilty   of  homocidOo 

This    case    sho'.vs    thiat   when  one    gets   v/ithin  the   house    iihe 
same    pi-inciple   applies   as    if   both  M?ere   out   of  doorsj.   arii.  oiily 
sucii   f  ox'ce   as    is   necessary  must   be  used, 

STATE  v   PATT£RS0]I,    p«    34S .      HELD,    the    sense    in  which   the 
house  has   a  peculiar   iiii...uriity   is   that    it    is   sacred  to  the 
protection   of   the   person  arid  his   family  o      But   an  assault   on 
the    house    can   be   regarded  as   ai'i   assault    on   t:ie  person  orily   in 
case   the  purpose   be    injux-y   to   tr.e   persons   of    ti-^e    occupants, 
and   in  order   to   accomplish   this   the   assailant   attacks   the 
house  a      In   surh    a   ease    the    irimates   need  not   flee  from  the 
ho'use    but  may  meet   the    assailarit   at    the    threshold  and  may 
kill    if  necessary    to  prevent   hini  from  breaking  in.      Therefore 
i§  an  assaiilt  be  made   upoii  a  house  with   i^itent   to   do    great 
bodily  harm  to    the    irimate^    or   if   the  circumstances   are   such 
that    one  honestly   believes   that    such   is   the   purpose   cf  the    as- 
sault,  he   is   justified   in  protecting  the   house    to    tha   e>:tent    • 
of    taking  life    if  necessary. 

If   t.:.era   is   no  danger  to   the    ina-iates,    but   only  d-ariger  to 
the   house,    there    is    no   rigL-.t    to   kill    in  defence    of   ito      But 
it  will   not   do   to   eay   that;    the    safety    of   the    irunates   are  only 
jeopardized  when   the    assailarit's    inteiitions   are   felonious   as 
their  safety  may  be    in  darxger  by  letting  him  in  when  his   in- 
tention  is   to  do   some   act   not   felonious  <>      So    the    rules   are .  ■ 
that   whenever  the   safety  of   the    irjmat  es  would  be   jeopardized 
a  defence  may   be  made   even  to  killing   if  necessary;    and  \7hen- 
ever  felony    is   attempted,    such  as   burglary,    the   same  rule    ap- 
plies*     One   of   the   important   points    of   this   case    is   that    it 
emphasises    the   fact    that   life    canxiot    be   taken  until    it    is 
necessary, 

C5 


C0;.->I.,0;r7i;iiLTF   v   DOMA^'Ui:,    p.    353.        Del't,    ravQ  uoncy    :o   X 
oa   tl-.e    condition  thct    is    sl-.o.Cd  be   I'ecoived  in  payii'.Ji'it    of  a 
bilLo      X  accepted   it   and    ilxen   i't^pudiated   ".hs    condition  and- 
deft,    seized  hi;.i  and   c'lokcd  l.iui  until  he   .••eturnod  the  ...on^ys 
r'ilLDj    oLe   i'acts  v;ei'0   as   dsTt.    believed  them  to  be,,   that    ^iha 
money  v/as  his   p:L.'operty    if  X  repadiated  the   condition;    and  un-- 
der  such   circunistances   a  rnan  uiay  defend  or   rer^ain  ;--.is  liiOiairen- 
tarily   intei-rupted  possession  by    the  use    of  reasonabit   force 
short    of  wouridin£.  or  the   employuient    of  a   dangCx'ous  v/eapono 

Sli£>;t   force    can  be  used  to  prevent   a   ;£;reat  many   'things 
and  so   in  the    ii.iuddiate   recaption  of  personal  property  as   in 
this    case.      But   one   cannot    go   to   extrevaes    in  such   cases   and  so 
Cqririot    kill   for   such  a  purpose    as    the   deferice    of  property,-.      If 
the   act    cari  -coi^.e   under  the   prevention  of  a   felony    of   course    it 
is   different, 

SUI.HvIATlY,        One  ...ay  use    i-easonable   force    to   defe/id  his 
property  and  also  for  the    iiTijiiddiate    recaptiori  of   it  ^    but   the 
defence   of  property  must    not    endan^^er  life,      Ari  exception   is 
in   the    case    of    the   dwel.'.inr   house   as    the    irurxates   are   entitled 
to    the   protection  of   its   four  walls   and  have   a   rig^ht    to  use 
any   force    to   prevent    its   being   invaded.      7his   rale   as   tc  the 
house    is   also  an  exception   to   the   one    that    requires  a   retreat 
to   the  v;ar.l,    but   outside    of   the  house,    or  \Jhen  the   invader 
once    rets    in   the   ordinary   rules   of   self-defence  apply. 


S£CTIOri      SEVEII.         IIECr.SolTY. 

R£G1jTA  V  E/JuBiiR,    p.    356.        Deft,   was    charged  with  the   li- 
ability  to   repair  -a   certain   road,    but    said  road  had  been  wash- 
ed away   by  a  flood,      HELD,    as   all    the  niate rials  with  which  the 
road  could  bo  made  -had  been  washed  a\7ay  by   the   act    of  God, 
deft,    is  not  liable. 

This   is  a   true   case   of  necessity,      Oi'dinarily    if   there   is 
a  duty   to  keoTp  a   road  in   repair  a  aian  cannot   excuse  himself 
because    an  uriusual   stonn  tears    it   up.     But   this   ease   goes  much 
farther  as    the   storm  had   put    it   beyond   the   deft's,    power   to 
repair.      There    is   no   question  as    to   a  justification  here   be- 
cause  there    is    no   exercise    of  will   at    all  arid  one    cannot  be  • 
puTii'shed  for  soiaethirig   done   beyond  his   power  or  against    his 
will.      So   Coxiiaionwealth  v  hrooX's,    p.    3C4,   where   a   teamster  was 
blockaded  so   that  he    could  riot  nove,   was   also    a  case    of  real 
necessity.      The   justification   is    these    cases    is   really  more    ' 
of  a  defeiice    thaxi  an  excuse   because   the   act    is  not   the    deft'so 
act,    arid   so   they  are    different   from  cases   like  Regi/ia  v  Dudley 
where   the   act    is   voluntary, 

06 


RiiGlHA  V  DUDL.CY,   p,   357'o        The   defts,    and  the  deceased 
were   adrift    on  the  \\X{y.  seaso     The  v/ere  almost  -starved  and  in 
order  to  maintain   tl.eir  ov;n  exist'ence   the   def  bs»   killed  and 
Ted  u];on   the  deceased,  a  weak   boy„      Ti.  is   they   did  in  preserva- 
tion of  their   ovm  lives o     FLLD,    the   act  was  wilful  murder  and- 
the    facts  are  no  justif icabionc      necessity »   to  excuse,  aiust  be 
equal  to  self-defence   arid    the    teiv.ptatiori  in  a   case  like  .t-his 
is   not    v/hat    the   laiv    calls   necessity » 

•  Cases   like    this   are  not    cases    of  real  necessity   for 
dsfi,    exercises   a  will,    arid  if  there    is   a  Jiistif ication   it 
must    be    oii  the   groju-ids    of  public   policvo      In  Re£,ina  v  Dudley 
the   deftsc    decided  oj-iother  should   die   and  killed  hii"!  by  their 
own  .ViOtion  arid  agair^t  his  will.      If   the    boy  had  been  so  near 
dead  tluit   he    could   not  possibly  have   beeri   saved,    then   it  mig^rJ; 
have   been   different,    as    it  mi^J-.t   liaTe  'o&?.-ii  said  then   that   ha 
was   picked  out   by  nature   arid  he   was    the    orily   one   who   could 
save    the    others   by  dyin^  while    they   could  not   possib3-y   save 
hii:i«      But    in  the   tsase   at  hand   no   single    ii'idividuaJ.   couJ.d  save 
his   life   except-  by  killirir   ariother  and  no   one    rirhtly  had   the 
pov/er  to   shoose^      But    if   lots   had   been  oast    then  the    case  ' 
v/ould  have   been  different    as    there   would  have  been  consent  a 
In  sitviations   like    this    the   parties   are   reduced  to  the   lai'^    of 
nature   arid  they  can   tha'ow   off  all   law    and  uiake  entirely  new 
lav;,   but    only  for   tliose    consentin,^:  to    it;    so   there   is   a   new 
jurisdictiori  and   if   they  vote   to   cast   lots    it   would  not    onl^f 
be   justifiable   but   le£:aio      Beale    thiriks    if  the    doinj;  of   the 
criminal  act   does   not    involve   an  inTrin^^ernent    of  private 
i-i^hts,    theri  it    is  mere3.y   a  quest iori  vrhether   it    is   better  to 
be  done  liride  r  the    ci  rs-JXiista?ices   and   it    is   a   question  of   the 
proportion  of   the   necessity  arid  the    life   or  property  saved  to 
the    irijury   to   the   Public,      Thus    iri  the    ca?e    of  landing  r,QOii.B 
to  p"revent    the   loss   of   a   ship  against    a  law  prohibiting  the 
laridinr  -of   goods    except    through   ^I'-s    custoiVi  house,    it-  is   jus*'" 
tifiable.      Like  this    is    the   case    of  Regina   v  'J'ray ,   p,    368,     • 
where    it  was   forbidderi  to   give   a\ray  liquor   or  to   sel3.    it,    arid 
a  n'ian   gave    it  Hway   to  save   life;   -no   private    rights  v/ere    invol- 
ved and   it  v;as   surely  justifiable, 

Lut  where   privaie    righis   are    involved,   at   least   to   such 
ari  extent   as    iri  l.ornocide   or  thefbj   Eeale    thijLks    ordinarily   orjS 
cariTiot    shif  b  his  misforturie  upori  another;    thus  a   starving  man 
cannot   legally   thrust  his  misforturie   of  hunger  upon   the   owrier 
of  bread,    arid   if  he   steals  he  must   pay  the   perialty;    but    it 
joiList   be   remeiiibered  that    it    is   riot-   the   value   of   the   bread  lost 
Ijy  which  his    crime    is  Vv'eigliedj,    arid  so   it    is  not  a   question  of 
property  v   life;    but    the   question   is  whether   the   public   se- 
curity  of  px'operty    in  gerieral   is    to  be  preferred  to   life  in 
these   cases   arid  the    irijury  to   the   Fablic   is    the   insecurity   of 
property   in  gerieral.      Take    the    case   of  a  large    steamboat   iri  a 

07 


narrow   chari^-iel  v/here    the   pilot  must   either   run  down  a   small 
boat    containi|?e   one   person   or   run  his   ship    ..pon  the   rocks   and 
kill   a  h-undredo      This    is   different   froa.  all    the   preceeding; 
cases   for  here   all   are    in  tiie    same   position  and  misfortiine- 
arid  soixie  must    die   and  it    is   not   a   question  of  thrustin,f,  off 
nisfortujie  onto  another,    for   it    is  iTierely  a   choice    on  v.'hom  it 
shall  fallo      Eeale    thirdis    there    is  no  doubt    in  that    sass-p    as 
the   pilot  must    act    in  soma   v;ay,   arid  caririot   avert    th3  i;iisfor=" 
tune   aitoge.ther .    that  he  must    act   so  as   to   endanger -the,   &ciail« 
est   nuiribero 

-  RESPUELICA  V  Iv'cCARTY,  p,  5G4<,  Indictment  for  treason.o 
Defte  enlisted  '.vith  the  enemy  after  he  had  been  u-aptured  and 
imprisoned  anil  continued  with  them  for  ten  monthso  TT5LDj  orily 
the  fear  of  i^iriiediate  death  and  not  th^at  of  an  irxforior  per- 
sonal -injury  nor  of  an  outrage  to  property  v;ill  excuse  such  • 
an  acto 

This   case   mearis   that    if  joining  the   eneL^vy  was    the   only 
means   of   escaping  death   treason   is   excused  ^   but  as    soon  as  ariy 
other  v/ay   opened ^   sucli   as   a  possible   escape,    the   excuse    ceased 
This    is    only   ao-iOther  application   of  the  principle    of  necessity 
in  self-defence;    there  must   be    a  necessity  and  the  way  of 
avoidance   taken  must   be    the   only  ^vas   to  avoid   the   criino. 

GOMIuOrmEALTTT  v  BROOKS;,    Po    3G4,        Deft,    was   charged  v/ith 
violating  ari   ordinance  -^.'hich  forbad  the    stopping   of  teams   in 
the   street   for  more   than  a   certain  t  ii^^e  ^   v:itiy  certain  excep- 
tions  as    to  market  men   in  their  stalls-.      Def^. o  v/3ls   delayed  by 
a   crovr'd  for   some    t  iire   arid   then  occupied  a-  certain  position  for 
less    ti:Lan   the   statutory  tL^ivSo     HELDj   deft,    is  riot  guilty  for 
he   d3.d  not   voluritari-ly   suffer  his   team  to    stop  v-'hiie   he  was 
delayed  by  the   cro\>'d» 

This    is  a  -case    cf  true   riecessity  ^niere  the   act    is  not,   in 
fact   the  deft-s.;    act,   arid   so   there    is   really  a  defence  erid  not 
ari  excuse  3 

Brig  James  V;ells   v  U,    So..    7   Cranch,    20;    Brig  Vviiliam   Grey,   1 
Paine-,    IG:    these   cases  v/ere   violations   of   embargo  a-its    where 
deftso  \7ere   driven  out   by  a-  storm„      They  were   als-o    oas&s   of 
real   riej-essity  and  so  deftSo   v/ere  held  not   guilty, 

STATE  V  WRAYj    p,    356 „        Indictn-ent    for   selling  spirit- 
uoiis  liquors  without   licerice   contrary   to  statute  ^      A  doctor 
prescrffibed  brandy   foi-  his   patient    and  dire&ted  her  hiisband  to 
get   the    same   fro0i-deftso   who  were   druggists.      The   doctor   also, 
directed  the    defts  o   to   let  tlie   husband  have    the    brandy  v/hi<sh 
was  bougl-    in  good  faith   for  medecine   arid  used  as    suchj      rliSLD, 
the    statute  was   passed   to   remedy  abuses    in  the   s^le    cf  liquor 
arid  sush  a   sale    as    iri  this    case   was    not    intended  to   be    supp- 

6S  '      • 


ressedo' 

This   is   a   case  where   the   act    is   excused  by   the   exigency 
or  the    case    arid  the.    injui*:/   to    tl::e   Public   is      less    than  what    is 
prevented.      It    is  a  vj-ay  of  acting  vhid.-.   when  carried,  out  does 
no  harm  and  hence  ruay   be   calLgd  a   sort    of  necessity.      There 
is   criiiiirial    interit  here    bi.i&   tlie   act    is   excused^ 

SUi.UiARY,        Necessity  propei'ly  means   that    one   is  prevented 
from  or  forced   to  do  soiviet'hinf  that   he    ou£>it    or   ought   not    to 
do   -  Conmonwealth  v  ErookSo      In   cases  v/here   one   fror/i  fear   of 
death  or  ^reat    bodily  harm   is    obli£;ed   to    take   bxi  alternative 
it    is    a   case    of  necessity    in  self-defence   propei-ly   spea.k:iri£,  — 
Respublica   v  McCarty.      But   necesiity  newev  wil  excuse  -tl'.e 
forcing  of  a  iidsf orturie    orxto   ariother   -  ?.ei;,ina  v  Dudley,      If, 
hov/ever,   no  harm   is   done    to   private    ri^^.ts   sucli    ari   act   may    - 
be   justified  -  State   v  ^'Ii-ay ^    and  if   it    is   a  question  between 
saving  majiy   as    compared  w'ith   a   fe\7   there    is   justification. 
So   also    if  one    is  oarked  o\it   for   destruction  ard   aj'iothe.r   caii 
save  himself,   he  aii^;-;*    for  tiie   sake    of  savir^  himself  accelei*- 
arate    the   d-eath  of  the  first. 


SECTION  £1G'-T,         COI'.iPULSIOII  AIID    COl.nJAIID, 

'  '  '        J^ 

RilGlNA  V  CRUTCH  LEY',?,    367,         Indictment   for  destroying 

certain  propex'ty.  Deft,  \7as  compelled  by  a  ::i0b  to  join  its 
nuhiber  arid  take  part  -in  t].e  destrviction,-  but  he  rari  auay  at 
the   first    opportunity*      HIiLDj,    not    ruilty. 

Beale   sees   no  possibility    in  a   case   where  life    is   invol- 
ved,   either  under  the   excuse    of  riccessity   or   compulsion,    of    • 
allov/inj;,  the   life   of  an   irirxocent   party   to   be   taken.      Courts 
have  held   that    some    criiiies    can  be    excused  by   compulsion,    but 
that    as   heavy   a   crime   as   murd-er   cariTiOt   be   excused,    but    tjiey 
have  not   dravm   the    exact   line„      The   policy   of  allowinc  the 
plea   of   compulsion   is  much  different    from  that    in  the  plea 
of  necessity,   because    in  the    fori.ier   cases   there   is    ari other 
hunnn  bein£;  concerned,    a   responsible   party   cari  be   dealt   with 
criminally,   and  so    ti-.e    stepping  out   of  deft,   still  leaves  a    ' 
crinie    arid  a   criminal  o      PAib    in   cases    of  necessity,    if   the   d&tl, 
is   excused,    there    is   no   one    criminally   responsible.      In  most 
cases  under  the    excuse    of    compulsion  fear    of   death   is  necessi^ 
ary   to   excuse,    but    in  sniall   crimes,    like   Ci'utchley's    case, 
fear  of  death   is  probably-  not   necessary,    but   fear  of  severe 
bodily  harm  is   sufficient,      Tlov/ever,    the  L>ere   fear    of  dannge 
to   property    is   never  ari    excuse    for  a   crij.,e, 

U.    S.    V  JONES,    p.    36S,        Indictment  for  feloniously   en- 
terine  a   ship   and   assault ir^g  the    captain.      Deft,   was   aj-x   in- 

G9 


avj 


X 


fericr   cJT.t'iv^ei'    oi-i  a  privateei*  d/aly   cOiYi-iissijneJ.  ami  a.-jted  un- 
der t:-:e    -.iouiiand  of   his    superioi-,      HilLD,    the   pai-bicsipa'.ion  of 
an   in:?ericr   off icex'   in  an   aci   v/.-ic;.'.  l.e   knov/s    c>'  ouLht    to    kriov 
is    iile£^ai   ^viiLiL   not   be    excused.^  by   ti.e    order  of  his   Bupei-ioro 

The   o.-'der  of   a   superior  may  be   ari   excuse   if  the    iriferior 
has   no   reason  to    suppose   the    order   is   not   le^al  arid   in  that 
case    the    inlerior   is   di'opi^ed  out   arid   the    s'uperioi^   alone    is 
held;    if  not   both   are  heldo      In  a   civil  aiiition  the    ille-al   ac- 
tion of  a   superior  is  no   excuse    in  ariy   ease,   but   criminally 
it    is   a  justification   if  the    inferior  reasoriably   believed  the 
order  Ie£,a'llo 


SECTIOII      iUIIEo         CUSTOI-. 


0 


'     RUCilNA-  V  REE'Df   p,    3C9.      Indicti.jent    for   irid.ecent   expo~ 
sure  o      Deftso   bathed   in  tlie    Sea  arid    passed  back    ani  fort-h  over 
a  path  which  was  a  pleasant   v/ali&   arui  much  used  by  j.adieso      It 
had  been  cua ternary   to  bathe    ti.ere   for  half  a    centui'y  arid  no 
previous    cox.iplaint  hai   been  made »      HELD,    custom   is   no   excuse 
ani  usare.,   hov/ever  lonf_,  continued,    will  not   £;ive  a   ri(-l::t    to 
V i 0 lat  e   pub  1  i '.j   dec enc y » 

This    is   a   plain   case    arid   eusto:.i  can  riev^ei"   excuse  ,    althoug 
iri    tL.e    past    such   acts  have  not   been  pu/iishedo 


CHAPTEI?   -^ZU,         -PA7ri£.3    111   CRllME, 

si:cTion  o:iE,      ageiicy, 

COra\iON'V£ALTIT   v  HADLEY,    p.    372 «         Indictment   ur^de  r  a 
statute    for  seliinc  liquor  without   a  licence.      Deft,    offered 
to   prove    that  he   v;as   oi-ily   the   hired  a£,ent   actinr    under  the 
control  -of  his   employer,,  who   owned  the    premises  v/here   the   sale 
uas  made  c      HELD,    such   evidence    is    not   an  excuse.      The    oooiriand 
of  a  master  wi^ll    afford  no   excuse   to  the    sei-vant    in  a  criminal 
aetiori  because    tl-ie    sei'vant    is   bound    to    obey   only    those  eornmarii 
which  are   lawfulj,'  and   tiie    acts    of  ari   agent   under  ^enei'ai    auth- 
ority are  his   owno 

A  servant   taking,  part   with  :.is  master  in  a   criminal    act 
can  be   punished  arjd  the    order    of    a  Piaster   is   rio  defence.      So 
even   if  the   iraster  here   technically   passed  the    title    to  the 
liquor^    yet    if   tl-^    servant    took  any   part    in  helping  in  the 
sale  he    is   punishable,    arsd   the   test    is  whether  he    is  taking  a 
substantial  part    in  the    salOo      Th.e   selling   is   not  merely   the 
passing  of   the   title,   as    defts.    contended,   as   if  ^he   employer 
was   present  he  would  pass    the    title   but    the   deft,  would  still 

70 


be    taliin,-,  ari  ac'^ive  pa.'b    in  the    sale.      It  lairhb   be   that    if  the 
servant   simply   de live L-ed  the    £0cxis,    that    in  certain  cases  he 
coia.d  not   be    said  to   be    takin:,   an  active   part.      In  Gi'iu-Anal 
Law   the   one  tf.io   does    the   ac't    is   the    principle   and  the   eiuployer 
if  absent,    is   the    accessory^      In  Civil  Law  the  parties   are 
just    turned  around  and   the    eiaployer   is    th.e    principal  ard.  t.h^ 
one  who    does   the   act  is   the  a£,ent , 

PEOPLE  V  PAPJiS,    po    37G«         Indictrjent    for    sGilinc  liquors 
to  persorjs    in  the  h^abit   of  be-comin^,   intoxicatedo      The   eale^ 
was  Xiiade    by    tlie   clerk   of  deft,,   viithout  his   knowledge,  -butt   the 
statute   prohibited  sales   by   clerks   as    v;ell  as    i-n  person^ 
HELD,    the   statute   only    covers    such   acts   as   deft,    concurred  in 
and  'the    cri^iinal   responsibility  must    fall   on   the   actual  wron^ 
doero 

There    is   no  doubt    tiiat    if  the    employer  knows  his   clerks 
are    in  tlie  ha-bit    of  breaking:  tlie   law,   he    is   guilty   if  he   does 
not    stop   them  8      There    is   also  no  doubt    tl^.at    if  he   h^s    no  rea- 
son to   believe    the    law  will  -be   broken,    or    if  he    gives   orders 
against    it,   he    is  not    guilt yo     But   there    is   a  difficulty  vrhen 
the    employer  has    reason  to    believe    siida    sales  "erill   be  made  ^ajnd 
does    not    stop    it »    but    goes    away  to   avoid   tl^e    responsibiiityo 
Then  Eeale-  thiriks   the    employer   ou£}it    to    be  held  on  account    of 
negligence.      There    is  mixch   coriflict    of  authority   as    to  ho^J 
far   tO'  go    in  hold i rig   employers   for   the    criminal    acts   of  their 
clei'kso 

'SUlvil.IARYo        VolT-iTitary   agency   is   never  ari   excuse    for   ti©3 
agent  9      The   Coxrjnon  Lav/   principle   that    the   employer   is    resprni" 
Bible   for   tlie   acts   of  his   agent   does   not    apply    in  Griininal 
Law,    and  the   principS.^    is   responsible    crii^iirially   orily   for  such 
acts   as  he   expressly  allov/s    or  fails   to  prevent  when  he  has 
reason  to    suspect   that    they  will   be   comnitted, 

SECTION  TWOo         IN1J0C£I>JT    AGENTS., 

MEviORANDUIu ,   p^    377,        This    is   simply   to   the    effect    tiiat 
where   an   irjjriocent   party   is   drawn   into    a   criiiE   he    is   to   be 
dropped   out    of    the   chain  altogether  and  treated  just    as    if  tlie 
guilty  pai'ty  had  used  a  dead   agency   as   his    instiniment    instead<, 
The  nearest    accountable    one    to    the    commission  of   the   crime    is 
tlae   principal;    there  must    be    a  px'incipal   to   every   ci'-im^    arjd.  tJa 
accountable    one    one   nearest    is    the    principal,   althougl-^-on  ac-- 
couTit    of   imioeent   agents  he  i.iay   be   a  long  way    off  from  the 
actual   comuission   of   tlie   act  o 

REGINA  V  MITCPIELL,    p,    37So        Deft,,   with  dntent    bo  kill 
X,    gave   poison  to  Y  to   give   to  X  as  a  medecine.     Y  did  not  ad- 
minister the    sans,    but   without  her  knowledge,    a   child   gave  X    • 

71 


o^ 


'i-Qh 


Ji-IJ 


the   poison,    causing  doabho      H£LD>    if   the    deft,    rave    the  poison 
to  Y^with   the    intent    to    kill  X  arid    if  aTterwards    it  T/as   ai.taiiri- 

ietered  by  arx   uriconscious    a^ent ,    deft,-    is   guilty    of  nurdero 

Cases  like   this   are    decided  on    the    pi-inciple    of-  causa- 
tion,  and   there    is   ri.o   diff eren^ce    in  ho3jlirc    the'  deft„    for  conr 
sequences    in  CriminLav;   than   in  ariv   othep  branch »      So    if   the 
chain  of   consequences    is   not   broken  deft^'  is    £;uilty,   no  matter 
hovi   the  poison   r,ot    to    the    person   intended-,      Eeale   thinJ^s   the  ■ 
chain  of   causation  v/as   no',    broken   in  this    case  ,   b^At    it-    is   a 
question   of    fact    in  every    case    whether   the   deft's.    act    causee 
the    injuryc 

REGi:iA  7  EAillliHJ,    r>.    379,        Indictaent    for  feloniously 
rnaki-nc   a   die        Deft,    applied  to   X,    a  die  j:iaker,    to  niake   two 
dies,      X  connivjjiicated  with   the   authorities  who  directed  him 
to    execute   the    order,      HELD,    X  v;as    ari    irinocont   agent   T/-ithout 
a   guilty  knov; ledge,      I.Iak  ing    the   die   was    criuiinal  but    in  this 
case   X   is    excused  arid   the    deft-,    is    therefore    tl:e    neai'est 
guilty   party  and    the   principal. 

Admitting   that   X  v/as    innocent    in  acting  under    the    orders 
of   the   officials,    deft,    is   the   principal,    for  the    lav:  does    not 
drop   out   the    intervening  parties  because   tliey    ai^e    ignorqnt   but 
because  they    are    innocent,      Every   cri;..e   luust  have    a  principal, 
who   is   the  nearest   purashable    one,    not    the   nearest    one   1-iaving- 
knowledge    of   the  act.      We  laust    assxame   X  had  the    legal  ri£jit 
under  the  direction    of   tli  e  officials   to    do  as    he    did;    and  also 
that  there   was  a    crime    inspite  'Of   that   authorization,   for   it 
is  not    like    the    case  where  deft,    is    induced  by    the    authori- 
u le  s  0  ' 

SUI,I!.IARYc        Every   criiiie  must  have   a   principal   and   if  one 
acts    through   innocent   agents    the   nearest    guilty   one    is   the 
principal,      Wliere    irinocent    agents    ca^e    in   it    is   question   of 
legal   cavise    sjid  v/hether  the    chain  of    causation  is  broken   off  - 

Regina  v  Mitchell,      One  may   he   an   inriocent   agent   v/ith  knowl- 
edge   if  his   knowledge    is   not    a   guilty  knovT7i.edge ,    arud  one  majf 
be   authorised  to   take  part    in  ai-i   act    in  which   others   are 
criminally   responsible    -  Regina  v  Bainrionr 


SEGTIOM  THREE,         JOINT    PRINCIPALS, 

REGlNx\   V  EINGLEY,    p,    oGl,         Indictment    for  forge I'v,      B 
and  D   took   a  house    for   the   purpose    of  forging  notes,      X  prin- 
ted  the   notes   at  his  place   of  business   and   they  v;ere   then  ta- 
ken to    this  house    and  completed ^   E   arid  D  performing  their  re- 

72 


i^ 


spective  -paints,   while   X  was  nob   pi-esent  v/hen  the   notes  uere 
coiiipletedo     HELD,    all    the   parties   ai-e  principals   as   each  acted 
in  pursuance   of  the    conmon  plan  and  each  performed   so.rie.   part 
in  the  -forge ry^    although  X  was   not   present   at    the  time    of   comr- 
pletiono 

Ariyone  who  has   a  necessary  part-  in  doinr,  a   crime   is  a 
principal   if  he    is   one    of  the   actors «      /jti  accessory   is  not    an 
actor   in  the   crime    itself » 


SECTION  POUR  a      PRINCIPALS    III  THE   2nd   D£C-REE„ 

COI.iLIONV/EALTH   v  lOIAPP »    Po    3S3o        DSi't  ,   was    indicted  for 
murder  as    a  principal  ar^d   the    indictmant    a-lso    alleged  that    X 
was   a  principal,    but   had    comiritted  suicide  o      The    ev-id-erice 
showed  ti'vat    the  iuurder  was   cccmitted  by  x,    but   deft,   was    in 
the    street   about   300   feet   distant,   aidirig   arid  abbettingo 
IIELD5    a   principal   in  the   second  degree  must    be  present  aiding 
abetting;;    but    if  not    actually   present  ^   he    is   in  a  position,   he 
is    in  a  position  to   render   aid  and  has    taken  his   position  by    - 
agreement   and  v/ith    intent    to  help   carry    out    the  nurder,  he    is 
in  law  consti'uctively  present. 

This   ease    states   the    law  very  well  as    to   principals   in 
the    secorjd   degree;    they  must    be   present   adding  arid  abetting, 
but   are   not    concerned  as    actors    in  tliC    crinie;    they  v/ere   orig- 
inally   called,  acce-ssories   at    the   f act » 

1  Cs   and  Ker»,    210,      If  a  dozen  people   go   out   to  have  a  duel 
and   one    of   the    combatants    is  killed  all   of  them,   oven  the   se- 
cond  od!*  the  man  who    is   killed,    are   principals    in  the    second-  ■ 
degree, 

2  C,   arid  Pe,    234   -  All    the   people   present   are  spectators   at   a 
prize    figiat   are   also  .pi'iTicipals    in  tlie    second  degi'ee    is   one   of 
the    combatants    is   killedo 

BPJ]ESE  v  STATE    ,    p,    336 „        Deft,    in  accordance  with   an ' 
agreement  v/ith   others    to   conuit   burglary   decoyed  the    owner 
away  frcsii  his    premises    to   a  place    a  mile    distant   arid   de-tained 
him  there  while   the    burglary  vras    conmittedo     HELD,,    de  f t  ^   Tas 
cons-tructively  present   and  so    a  principal   in  the   second  de°* 
greeo      If   one    contributes    to   the    crime )the   test    to   determine 
whether  he    is   a  principal,,    or  accessory   is  v;hether  he    is   so 
situated  as'  to  make  his   personal  help    in  any    degree   available 
if   required, 

0 

•  Beale    thinks   the   defto   here   7,ras    a  joint   principal    in  the 
first    degree    arjd   actually  taking   part    in  it,    as    in  Banrien's    • 
case    ,   for  in  this   class    of  cases   if  he   is  not  held  as   ac- 
tually  taking  part    it    is    stretching  the    point    to  hold  him  • 

75 


const  inactively  pi-esent;  he  ou£;ht  either  to  be  held  a-s  a  joint 
principal  in  the  fi-rst  Je&ree  or  merely  as  accessory, 
13  llevo,  386  0  Deft„  made  a  sigrial  bonfire  several  milas  away 
as  a  sicrial  for  the  robbing,  of  the  stage-coaoi.o  H£LDj  he  was 
a  principal  degree  arid  constinictively  presents  Beale  thinJ^s 
here  also  he  yras  eithe-r  a  joint  principal  in  the  first  degree 
or  'siiuply  'an   accessory. 

2  Co   and  P„,   427<,      Passing  a  coxiTiterf ei-t   shilling,   having  at 
the    sai..e    oii^.e    other  money    in  the   dsft^Sc    possession,   was  made 
a  particular    crL.ie„      X  and  Y  went    together   to  pass    a  couri-ter- 
feit,    X  having  a   covu-iterfeit    shiilirig  alone,    arid  Y  having  a 
good  shillings   and  X  went    into    a   sl^.op  arid  passed  the    bad  aoney 
v/hile   S"  stayed  outside.    It  vms  held  that    the   particular   crime 
of  passirig  a  bad  shilling  with  good  ones    in  possession  v.'as 
coauiiittedo      Eeale   says   this   decision  must    be   put    on  the   ground 
that    they  were    joint   principals    in  the    first    dsgreCc 


SiCTIOIT  PIV£.        ACCESSORIES, 

An  accessory   is    one  who   aids   arid  abets   a   cringe  j    but    is 
so    far    absent   at   the    time    as   riot   to  be    ablfi    to   encourage   the 
priricipal  by  ariy  hope   of   uaiiediate  assistance.      The   duty  which 
a  vife    o'r/es   to  her  ^.usband   is   such   as    not    to  make  her  an   ac- 
cessory  by   any  receppt   giveri  her  htisbarid;    but    if  she  be  guilty 
of  procuririg  her  husband  to   coLiiiit    the    crime    it    seems  to  make 
her  an  accessory  before    the   fact    in   the    sai:*e  manner  as   if  she 
had  been  sole,     ]To   other  relation  besides   that   of  the    duty  of 
a  wife   to   her  husband  will    exempt   the    receiver   of  a  felon  fran 
being  ari  accessory  to   the    felony,   not    everi  the   duty  of  a  hus- 
barJ.    to   the   wife, 

REGIIIA  V   CLAYTOil,    p  „    3G8,         Joint-  iridictment    for  attemp- 
ting  to   set    fire  to    a  house  <>      Tae    deft,   x  was    not  present    at  • 
the    time    th^e   act  v;as    committed,    but  he   ]aie»7   beforeh^and  tl~^t   th 
fire   was   to   ta.ke   place „     HELD,    all   those   who   take   part    in  mis- 
demeariors   or   in  treasoris   are   principalss    arjd   it    is  not  neces-' 
sary   to   prove   their   preserice   at  the  time   of   tl^e   crime o      So  as 
this    is-  a  misdemeanor,-  if  X  couriciHed  and   encouraged  the    oth- 
er deft  3 ,   he    is   guilty. 

Accessories,   properly   speaking,    orily   exist    iri  feionies. 
In  misdemeariors  and   in  treasons   all   those  who  liave    anythirig  to 
do   with    the    act  are   principals,    in  one   ori  accourit   of   the 
smallness    of   th-e    crime,    iri  the    otiier   ori  aecourit    of   the   intensi 
ty   of   the    criL-iCo      The    importarxce    of  the    distinction  is    seen  in 
the  -pleaiing;    in  felordes   the    iridictment    states  whether  the 
defto    is   ir^dicted  as    principal    or   accessory,  while   in  misde- 
meariors  dj2.ft,  may  prepare   a  deferice    that  he  was   not    aiding  arxi 

74 


X 


abettinr   aiiu.  ab    tLe   trial  may   find  himself   charg^ed  as   ari    ac- 
tor, 

?v£GlNA  V  BROVni,   p.    3G9.        In  die  tine  nt    for  murder,      Deft'so 
wife  v^as-  present   and    slie  was    indicted  as    an  accessory  before 
the    facto        I'ELD,    ari  accessory   before    the    fact  must    be   absent 
at   the    tiiu£    tlie    crinie    is    coiru.itoed,    and   the    act  must    be   done 
in   consequence    of  seme    covuicil   Oi'*  procurex.ierit   of  his;    so    xt 
anything   the  v/ife   was    a   priiicipalo 

COl.II.:OtIYf£;ALTi:   v  PI'ILLIPS,    Po    3G9,        Indictment   as   an  ac- 
cessory befoi^e-   the    f  ac  b    in  burr,lar.  ,      ?i.e   priricipal    in  the 
crime   had    died^      H£LD,    an  accessory   carxriot   be   put   on  trial 
except   by-  his   own  consent   until  after  the    coriviction  of  the 
principalo      So    if    there    is   no    principal  there    can  be   no  acces- 
sory and  innocence    is   presuiaed  till   £,uilt    is   sl.ov/n. 

Art  accessory   by   Cormon  Lav;   carinot   be   convicted  uriless   a 
principal   is    convicted,   arid   so    if   the   principal  be   pardoned 
the    accessory   cannot    be   p;.iriished<,      This    is  -the   great    practical 
distinction  between  priricipal    arJ.   accessory, 

STARIh  V  P£OPL£.   p.    390  o        Deft,   was    indicted  as    an   at;*- 
cessory  before   the-  fact    to   t-.e    crii..e   of  bur^^lar:/'   coi.i^dtted 
b:    four  principals,      Orily   one   principal  had  been   convictedo 
HiCLD,    an  accessory  may    be    tried  and   convicted  v/hen  one    olily 
of  several    principals  has    been  convicted,    but  he  must    be   con- 
victed as    accessory   to    that    principal. 

•  '  ' 

The    select ioris   from    the   sto.tutes    of  Mass  o    arjd  No-  Yo    on 
p,    391   shov;    t..e   differerxt    lines   legislation  has    taken^      In 
IJass,    accessories    stiH    remain,  -but-  they  may   be  puriished   irre^ 
spective   of   the    principal.      In   IT,   Y,   accessories   before    tiie 
fact   I-xive    beej-i  abolisl'.ed  and  are   treated  as    principals;    acces- 
sories  after   the    fact    still   remain,    but   they  ..ay   be   punsshed    • 
irrespective    of  the   principal, 

SUI.lIARYo        All   those   who   take   part    in  a   crime   as    actors 
are  principals    -  Re&iria  v  Zin-ley.      ?onne-rl      those    who  did  not 
take   pai-'t,    but    assisted,   were   access  .'ries   either  before,    at, 
or  after   the    fact.      At   present   all  those   wLo   act   at    the    tinie 
the    criix^i    is   committed  ai-*e    principles,    but    the    other  two   clas- 
ses  of  accessories   remain^      Principals   are   of  tv/o   degrees    - 
1,    those  who   take   part    in  the    act;    2,    tl^ose   present  vfho  aid 
arid   abett.      Actual  presence    is   not    always   necessary   if  at    the 
tiiiie    ti.ey  v/ero   actually   reridering   aid  seme  where   near   -  Ereese 
v  State,      In   treason   arid  in  misdemeanors   all   concerried  are 
principals   arid   accessories   orily   exist    in  felony   -  Regina  v 
Clayton,      An  accessory   before   the    fact    is    one   who  aids   and 

75 


abetts   another  to   comiuit   a   cringe   and  at    the    time   of  the   crime 
takes   no  part,      A/i  accessory  after   the.   fact    is   one  v;ho  gives 
any  assistance   to   a  felon  to   escape  after  the    crime,   but   a 
wife   carinot   be  -an  accessory   after  the    fact   when  her  husband 
is   the    criiainal.      The   distinction  bet'^een  accessory   before   the 
fact   and  the   principal   is   nov/   £,enerally   aboli^ied  by   statutCo 


SECTION    SlXc      ACTS   DOIIE    111   PU?.SUAMG£   OF    A   COMI;lO:i   DESIGN. 

ASHTON'S  CAS£,  p.  392.,  Wl.ere  several  persons  are  en^&^ 
g,ed  in  a  criWiO  ariy  miscliief  done  by  one  in  pursuance  'Of  the  • 
urilavful  act    is    corisider'ed   in  lav;   as   coiaiuitted  by  al3,, 

RUL0P7  V  PEOPLE,   po    392,        The   deft»   ijas   one   of  3  persona 
burglariously   entered  the   premises   on  which  the  decease^!  was 
killed  by   one   of   theui  in  pursuance    of  the    intent    of  alio 
Deft-,    either  fired  the   shot    or  v/as   present   aidinr,  and  abet— 
ting...     HELD,    all  w..o   are   present   at    the   time    of  coijmitting -an 
offence   are   principals   althoufj.!  one   only  acts,   provided  a31' 
are   engaged   in  a   comnon  design  of  \7hiGh    the   offence    is   parto 
If   there   is   a   general   resolufciori  against    all   opposers   whieh 
may   be    infierred  fror;i  the   circumstarujesj    all    those    present  when 
the   criirie    is    conriiitted  are   equally   guilty o 

This    case    decides    tliat   wheri  ari   act    is   done    iri  pursuance 
of  a   comaion  design  vri.ich   act   miglit   have   been  comtemplated  fran 
the   design,    all    those   present   are    guilty   as    principals;    of 
course    those    not    actually  doing   the   act    are   principals    in  the 
2nd  degree e 

STATE  V  ALLEN,    p.    394,        Deft,    and  one  X  plariried  an   es- 
cape  froiii  prison  and  detertnined  to  kill   anyone    opposirig   thenio 
They  were   discovered  by  S,  who    in  tryijg   to   prevent    their  es- 
cape v/as  killed  by  Xo      Prior  to   the  homocide   the   deft,   with- - 
out   any  declaration  of  his    intention,    but  with  the  knowledge' 
of  X,    returned  to  his    cell^   X   supposing  he  was   aTter  a  weapon* 
HELD,    if   the   deft.   v;ithdrew  v/ith   the    intention  of  notifying 
X  with   such  withdrawal,   and   if  he   did  such   acts   as    should  have 
been  effectual   for   that   pui'pose,    but  v;hich  did  not   produce   the 
effect    intended  upon  the  mirai   of  X  such  facts   are   proper  for 
the    consideration  of   the    jury^ 

Bea-le   does   not    thirds   this    case   goes    far   enough  and   that 
the   defto    is    st-ill    guilty   if  x  did  not  undei-stand  hii:i ,   al- 
tliough   the   deft,'  did  what    a   reasonable  man  woiild  have  known 
was    a  withdrawals      This    is    against    the   argument   but  Beale 
thiriks    it    is   the   true   ground;    for  as  X  started  his   confederate 
acting  for  him  he   should  have  prevented  him  from  acting  so    any 


«ifli.';Tr7 


ioncer  by  absolutely  msikin^^  YMa  uruierstarui  Lis   c:.an£ei  posi- 
tion,    -Suppose  A,    intending  to  kill  L,    sends  '.-La  an  inTerrial 
LiacLine,      Laiei*  A  repents   and  sends   2   a  letier  warning  him, 
and  the   jury  find  that   a   reasonable  laan  \70uld  have   opined  the 
'letter  first;    but  E   frorii  curiosity   operis    the  xnachine    'irst   ard. 
is   killed.     There   is  no  doubt   that   A  is   guilty.      Suppose   A 
£,ives   B  poison  and  later  repents   arid  £.ives  hin:  an  emeiic  whidi 
would   ordinarily   oxfset    the  poison;   -but    t..e   eiueiic   falls    to 
work    arid  E   dies.      A   is   surely   ruilty.      These    cases    sh>^   the- 
pririciple    apon  w.-ich  Siaie   v  Allen  should  have  been  dJcided* 

STA"'ii;  V  LUCAS,   p,    Z'JG.        Defts.   to  assist    in  the   robbery 
of  a  mill   carried  X  to   a  place   near  the  i.iill  arid  waited  for 
hiiVi  to    return,      Duririr,    the   c-oi-aiiission  of   the   offerice   X  robbed 
a  watchxuiari   of  a  suia  of  noney.      The   judfe,e   ciiarced  th^t   if   defts 
with  the  kriowled^e    of  the    iriterit    of  their  associates   to   commit 
eit..er  crixiie   acted  as   thoy   did,    they  were   guilty  of    ti-;e    rob- 
bery -of  the  watclaTian.      H£LD,    the   instruct i oris  were  wronr  as  • 
defts,    could   orJLy  be   liable   as   accessories   to   the    crimes   they 
had   abetted,    and   to  rio   others  UTiless    they   a^^reed   to  slare   vn 
the   proceeds   of  ariy   robberies    t..e  ir  associates  iai;>*t    conmit, 

A  ijaii.    is   orily   accessory   to   crinies  he    abetts   or   to    those 
w:.ich  uii£j-.t    reasorjably  be    contemplated  in   the   coiiiission  of- 
t.-,oso    he    aids    arid  he    is   not   liable   for  anotl^-r  distinct    crLns 
coi^itxiitted  without  his  kriowled^e  and   authority,      T:,e    test"  is 
v/he  the  r  the  act    ou{>;t    to   be    corrsidered  as    coritemplated  in  tlife 
pursuarice   of  the   orif^iral    criuie, 

Sin.O'viARy.        If    the   act    coiiiiait  ted   is  a  natural  part   of  and 
£,i-ows   out   of    ih-e   act  all   ai'o    erif^a£,ed   iii,   all   are   ^  iable   - 
Ruloff  V  People,      Also   if  several  a£,ree   to  coiijuit   a  crime    in 
a  particular   v;ay  each   is   resporisible   for  acts   liorie   in  the  way 
aj^reed  uporx,    but  riot   for  acts   done    iri  ariot.xer   indeperident 
criiue    -  State  v  Lucas,      The    orie   crime  must    ^i-ow  naturally  out 
of  arid  be   a  natural  result   of  the  other   for  the  de:^,    to  be 
liable.      V.T-.ere   one   intends    to  withdraw  from  ari  iritended  criiae. 
v/hich-is   carried  out   by    the   others,  he    is   not  liable   if  he  has 
withdrawn  to    the  kr»owledre    of  his   corif ederates   -  State  v 
Allen. 


CHAPTER  J:Li:V£N, 

JURISDICTIOII      OVi:R      OFFENCES. 

SECTICII   OlIE.         LOCALITY  OF   OFFENCES. 

U,    S,    V  DAVIS,   p.    598,        Deft,  while   on  an  American  ship 
shot   a  man  on  the   deck   of   a  foreicri  vessel,   which  was  under 

77 


tlie   a cluiov/le deed.  jarisJ.iction   of  a  foreig^n  £,overnment,      HELD, 
■t:-.e   offence  .  appenej.  v/Lere   the    shot   took    effect-  and   the   juris- 
diction of   it   beion£,s   to   the   fcreie^n  £,ovarr;inGnt  o 

13   Cox  Co    Co    -  dafto  picksd  a  j,.-an.  up   on  an   JSnclish  vessel 
and   threv;  hiiix   into    ihe   Sea,      1^   was    held  the.    crime   was    coamit- 
ted  on  board   the    vessel.,    and   tl.e   place   v/her-e-  the    foi^ce    is   ap-- 
plied  is   always  where  the-    crime    is    coi.iiiitted.      So   the   actual- 
force  deft.,    broui>it    to   bear   ori   the    body  was    applied  on  board 
the   vessel,    althouf^h  he   used  the   water  as    qji   instrument    in  his 
criivxec      So    if   deft.,    reiaoved  a  plarJs:   arid  lets   a  aari   fall   tliroug 
deft,    applies    the   force   of   £^ravitation  at   the   tiine    when  the 
man  drops ,  '~     ' 

The   only    case   Eeale  kno'Js    of  a^airjist    this   view   is   11   Cox  C«    C.' 
193,   where   a   Gannarj.   vessel  ran   into   an  ilri^Msli   vessel  and  a 
man -on  board   the  English -vessel  was  drownedo      The    coiirt  heU 
th^t    it   was    a   case    of  negligence    and  that  -the   crima  was    com- 
mitted- \7he  re    the   ij£i£;).i£,ence    occurred,    that    is   on  the    German- 
vess-elo'     Eeale    thiriks  this    position  is  untenable  o 
In  Uo-So'  V  'Davis   de^ft.,    coulj.  have    been   iudLcted  for   an   attempt 
on  tiie   Uo    So    vessels      Tha    only   question   is  whether  the    attempt 
was   merged   in  the    hcmocide,    but    as   there  were  ^   separate   jur- 
isdictionSj    there   was    probably   a   crime    in  oacho 

STATE   V  iJTYCKO??,    p..    309 .,         Beftc    was  -indict  e-d   in  N»   J, 
for  Larceny    arid  for  receiving  stolen   good.s »      Defto   procured 
X  to   go   int-o  N,    Jo-  and   steal  the   articles    arid   deliver  "biiem  to 
hii:.  in  M„   Y,      Deft  <,    vras    in  IJ,   Ye    during   the  whole  ti  me  o 
HELD,    the   deft, -J   not   being   actually    present    or   const  rue  ti-v^li 
present    in  IT,    J..;,   was  not   a  principal  but    an  accessory  before 
t-r.e  -facto      His  offence   therefore  ^as-  entirely  coirraittred   in 
lla   Yc    arid  he    eara-iot   be    tried  in  rh    Joj    because    a   crime  must 
be    tried   iri  the   place    v^ciore    it    is    cojrii-iit  ted,, 

Vfr^ere   ari   irmocont    agent    is   eriiployed  the   law    implies  a 
corj^tructive   presence    from  the   i-ieoessit^.''    of   tiie    case  ,    or 
there   Virould  be    a  crime  ard.   t£)    priricipalo      At    Cooimon  Law  if  a 
man   in  one    state  procured  a.   cririie    to    be    done    in  arjother,   he 
could  not   be  puriished  everi  as   ari   accessory   in  the   foinier,   be- 
caiise   to    convict   sn   accessory   there  must  'be   a  principal,    and  • 
there    is    rio  principal    in  tl^e    former    state  ^      S'O   at    Coirmon  Lasi 
the   accessory  wouJd.   get   off   free    in  this    case  ^      But   by   stat- 
utes ma;^  irig  the   accessories   puriishable    irrespective   of   the 
prirtcipal^  he   cari   be   punishad   in   tiio   state  where  he   acts<, 
Be  ale    thirikG    it  a  3£o   proper  that   a  statute   could  make  him 
punishable  where    the   piTin'^-ipa],   actS;   as   he   ca/i,    on  principle, 
be  puj-iished  there  -whe.ri'a  g-ailty  agent   acts   for  hiiii  as   princi- 
pal  as   wheri  ari  innocerit   agent    acts;    because-    by  procuring  an  • 
act    to  be   dnne    in  anotiier   stat.e,  he    is    coranitting  an   offence 
against    the    citi.'zens    (^f   that   state  and  must    be   assumed  to  be 

78 


aial:in,^  l.iias^slf  a^ueriable   to   t\eii*  Zav/s . 

STA'^x:  V  'GLSSi:;"^? ,    F«   403,         Ij-idictiusnt   fouj-.d   in  .'.ilriri,, 
c^.axV^injL  defi,   '.Yitl.   coi^ii-iiitinc  .uurdei'  b-y   iriflic-in^  a  -./ound 
upon"::  in  I.iinn,    of  v/:.icl.  l.e   died   in  V/is,      ;:i;LD,    the   oTfence 
ta]5CG  place  uiiei'e    il.e   act    is   done,   and   tl:e    act    jas   go  j.dtted 
in  i.iirino 

Tl.e   deft,   does   Jot    do    ariy   oil.ei"   act    ai'tcx-'  he    sii'ikes  X, 
even   ihcu,>.  X  dies.      So    ir  A  shoots   I!   arid   af^er-yards    3   diear^ 
A  does   not   do    ari^i-iri;^  nOi'e   ai'ter  .:e    puts    ohe    b'ollei    inio   Bo 
A   is    x'esponsible   fo^*   ihe   deaih,    but-    >:,.e    criue    is   cc.i.iitted 
ViTl.en    arid  './hei'e    t  .e    i*oi'ce    is    applied. 

Li:iDShY  V  S"'ATi:,   p.   40    ,        Indictment   foi-  publis-.inr    a-s 
ii'ue   and  (^enaine   a  for^^ed  deed.      Tlie   fo^-^ini.  v;as   dene    inl.lo., 
bui    ihe   ci'ine   was   conixiitted  in  Ohio    t -i-our,';  defi's-    partner 
and  2   innocent   a^^^ts;    that    is    the  partner  sent    tlie  deeds   to 
aii   imiocei-it   ai,ent    in  Or.io'.Tho  publis-hed  tiieiuin  seilin;:^   the 
iando      Deft,   was    riot    in  Ohio   at    all*      r£LD,    t:.:©    criirfi    \''as 
coaruiited  ii-x  Ohio   as   the    deeds  \/ei'e  pubiisl;ed  ti.e  i-e ,    and,- 
there  beirj£,    ari    imiocent    a^enc,    it   \7as    ti\e    saiue   as    if   deft  «   v/as 
in  O..io  hi-xself , 

The   extracts   froiu  tLe   statutes   of  I.ass.    and  II,   Y«j    p, 
405   show   the  i.iethod   in  v/'.. id.    these    cases  have  been  dealt  uith. 
The  i-.iass.    siatui^e  i^akes   an  accessory  punishable   T/herever  he     ' 
does  his   act    if   the   principle    crii^.e    is   coi.k-ii^> tad  in    tae   statSe 
This    is   cP  oJ-  i^-'"''  because    a   Ci*ii.->e    is   theri   coi.i..iitted  ar^airosi   a 
ci:isen  of   tl^e   state.      The   II.   Y.    statute   punis'hes  accessories 
also  v/here^er  the  principle   cri:.ie    is   cci.i.a tted.      ""..eso   statute 
are   ca.ii.*ori, 

SUI.n.lA'^Y,        The   locality   of  an  offence    is  where    the    a^t 
is   done  whicl~.    is    injj.rious    to   the   Public.      In   the    case    of  mur- 
der arid    criiifis    involving  personal   injui'y,    the   criire    is   conait- 
ted  in   the  place   where   ti^e    force   vrfaicl'-.  produces   the    result    is 
applied.      In  the    case    of    ari    attex^xpt   and  failure,    ti:e   attempt 
is   indictable  v;herever   tl.e  actor   is   at    t-:e    tLie;    if   the   act    is 
coa^pleted   it   is  a  question  whether  the  atieiapt    is  nerr^ed  ac- 
cordin{,    io    the    csricral  rule,    thai    is   vThere    ti.e  atter^pi    is  laade 
in  one   J  Lirisdiction  ard   tl^e    coiupleted  act    in  another,      Accordpr 
in£,  to    the   old  law,  when    tlie  principal   acted  in  one  state   and> 
the   acces'sory  in  another,    the    accessory  could  not   be   punished 
in  either,      T...is   is  now  changed  by  statute   so    thiit    at   present 
a   state   can  punish  an  accessoi'y    to   a  criciO   cor.iriitted  v/itliin 
its   borders,    although  the  accessory  was   all    the   tiave   in  ajrio- 
ther  state, 

79 


Si:GTlCN   TWO.         5TA'"UT01Y  JU''.lSDlC'"10n. 

STATi:  V  K:iirT?''T,p.   40G,  Iridic ^i.-ent   for*  passing   couTita-r- 

feib   bills    of  IJ,    C«    in  Va,      7  .e    iridic  iuent  ^jas   di-*a\vn   in  II,    C.- 
upon  a   siaiute      subjectinf^  sucl.   counierraiu&i-s  -to   the   same 
peria-.ties   as    if  the   criuie   was    co.ui.ii-ed   in  IT.    C.     T'ELD,    tiiis 
Btai:e   carinot   declare   that    an  aco   done   by   a   citizen  of  ariother 
state    in  t-hat   state   alone   shall  be   criininal  arid  puriished  in 
this    state. 

It   woiiid  have   beeri  different   if   the    coun'iex'fei  ;  bills 
i^d  been  serh    acx-*oss    the    bordex-  arid   t..e   le!^islatui*e  had  r.iadfi 
suc-  ti-ansuiss  ion  a   ci'L.ie;    fo-*   t'.xxt   -.vould   be   an  offence    dire-ct 
ac^ainst    tl.e   citizeris    of  IT.    C.    arid   so    v;it_:iri  its    jiix-isdiction, 

STATjG  V  CART£'^,   p.   407.        Deft.    .;hile    iri  IT.   Y,    £,ava  X 
sevei.*al  xiiOi'tal  bi*uises    of  \vhich  ho  died  iri  N.    J.      De-f  i.-  ./as  a 
ciiizert  of  IT,   Y. ,   bu';    h.is    indi  ctiuent  ^^as   dravm  irx  IT.    J, 
}'£LD,    N.   Y.  has   ju^'isdict  ion  of  this    case    arid  riot  IT.    J,    as 
ti-e    deft,    did  riothxri;'_    in  II.    J,    arid    so    coi.ir.it ^ed  rio   cri^ne 
there. 

COI.]I.iOin;£AL?''  V  licCLOOII,   p.   409.        Defis-.   '.vei-e   convicted 
of  Ciarislaix^^ite-*   of  a  'X^ei'sori  who   died  iri  iiass.   fit>^.  inj -U'ies 
iriflicted  b^    the   deft,      Defts.    iriflicted  t'.e   irijury  on  a 
Bi'ittish  vessel   ori  tlie   Li.j^h  seas,    arxd  one   of    ':he  defts,,   was 
a   citize/i  of  l.laine,    arid  the   ot  .er  a  3i'i':iis-    subject.      Tl-iey 
■wei'e-  iridicted  uriJe  r  a   statute   p.-ovidirc    that    ix*  a  maxi   dies  in 
Mass,   fro...  ..iCi'tal  wovj-ids    iriflicted  v/itl.in  or  vitl. out    tliS 
state,    ihe    person  inflictinr^   vhe  wouj'ids  i.iay   be   i.ndi  cted  vrhare 
the  ...ari  dies.     hxILD,    it    is  v/itr.iri  the  po'./er   of   t.:e   state  to 
i.ak  e    such   a   statute.      The    persori  v/rio  urilawfully   sets   t  ^e  mearis 
of  deatc.   iri  u.otion,   v;het  .er   tlJ.'Ou^^   ari    irinocent    a^ent   or  on 
accourit    of    irijuries  he    i.nflic-s   hL..self,    is    the   {^.uilt^    ca'ose 
of   t'-.e    deatl.  at    the    tii.ie    arid  place   vji.ere  liis  act   produces   its 
fatal   result;    so  he  aay   be    zl.ei-e    tried  and   pimis-.ed  by  statute 
i^  riot    by   Cor/niori  La.v , 

It    is   settled   t;:at    a   state  has    no:    t  .e  po'.rer    to  puriish  ari 
act   dorie   outside   of   its   jurisdiction  urh-e-ss  done  by   its   o'iJ'ri 
citizerv?,arid    it  iaus  t   be    ri-^anted  t:..at   Liass .    can  orily   px-iish 
sQiiiethiri^  d-one   in  Llass  . ;    st    the  quest  iori  is  vhetl.er  any  act   is 
done    in  I.iass.    by   tlie  i.iurderer  wheri    the  i.-iUrdered  mari   dies.      If 
he   does    ar^'thiri^,  it    is  the   causing,   of  the   death.,    but  marder 
is    causing  death  by   tiie    iriflictiori   of  physical  harm;    arid  so 
UTiless    tl.e   deft,    iriflicts   phys  ical  luiiT.-i    iriihass,,   he    cannot 
coLu.at  iJiurder   there.      Of  course    it  ai£;.t  be  made   a   criue  by 
statute    to  per...it   a  Wounded  nan   to   co^L-ie.    into   a  stat-e   and  die; 
Lu   that    case     the    effec:   would  be    in  hass , ,    for  deft,   would 

30 


1.1  4- 


be   the   cause   of  having  a  v^oundeu.  mcxi   in  Mass,,*    but    that   is  not 
what   is   called  mui'dei"  and   the   statute    cannot  make   it  murder 
unle-ss    it   changes   the  dcf-inition,      Eeaia    does   not   think   the 
deft,    did  any   act    in  Masso,"    'if   there  was    ariy  act    it  was^leav- 
in  g  the  bullet    in  the   body;    but   that    is    not  murder,    as  murder 
is   the   placing  of   the   bullet    in  the   body,    arid  wrongful  act   is 
not   a   continuous   one   but   a   single   act   at   the   time. the  hann   ia 
iriflictedo      Of    course    ari   indictment    ce.xifiot   be    framed  imme- 
diately   on  accourit    of   some   future  necessary   effects,    but    the 
acts    is    tiie   same    although  punislied  differently   according  to 
its    effect;    a  man   is   ly-^^iisned  for  his   act    arid  not    for    the    conr- 
sequences   of  his   act,    althougii  the  p"uriisiiment   varies   according 
to  the   consequences,      kt   Gomiuon  Lav/   there    is   no  doubt   that   the 
crime   iw   committed  where   the   biov/   is    inTiicted  and  the   ques- 
tion only  becomes  doubtful  when  the   Common  Law  rule   is  changed 
by  statute;    so    it    is    important    to  decide  v/hether  there   is   ano- 
ther act    done  by   the  murdex^er     at    the  place  where  his   victim    ■ 
dies,    in  order   to  ascertain   if   the   legisla-ture  has   the  const'i- 
tutional  pow   er  to   punish  the   murder   the  re  c,      In  N.    J,   and  Me^, 
such   a   statute  has   been  held  uncoTistitutional,   while   in  Mass  , 
and  Mich,   the    other   rule  prevails. 


CHAPTER     TVJELVE. 

CRII'.IES      ASAIIIST      THE      PERSOH. 

SECTION  TWO.        THE  ACT   0?  PERSONAL   IITJURY, 

CASTELL  V  BAI.1BRIDGE   and   CORE>ET  ,    p,    420.  The   appel- 

lant's husband  was   a  prisoner  under   the   custody  of  deft,,   who 
placed  hiiii   in  the  vitualing  house   of   Corbet  where  X  was  sick 
with   the   small  pox,      HELD,    if   Castell  was   carried  to  Corbet's 
house    ard    detained  against   his  v/ill,    deft,   knowing  of  the 
smallpox   ca-se    arii   that   Castell   feared  it    arid  Iiad   not   had    it, 
and  if   deft,    refused  to  -remove   him  so    that   he^  became    ill    ard. 
died  from  smallpox,    deft,    is   guilty   of  murder. 

If  a  man  knov;-ing  he  has  mallpox   enters    into   conversation 
with  another  person  it    is   a   criminal  act   because   he    is   at 
least    recklessly  negligeiito      So  he   is   guilty  of  physical  vi'O- 
lence    and  not   simply   of  a  misdemeanor  against   public  health,  • 
If  he   intentionally   comiiunicate   the   desease   there   is   no  doubt 
about   the    case    and    it  must    be    reckless    criminal-  negligence   to 
go    out    on  the   street  with   an  infecti-oj^is   desease,'     The   only 
thing  against    tli  is    view   is  Hale's    stateme-nt   on  p.   419,-  and 
Beale   kriows   of  no   case    agreeing  v/ith  Hale,      Where  -deft,   puts 
a  prisorer   into   an    irifected  cell  arid  he  dies,   deft,  has  been 

81 


held  guilty  and  Eeale   thiriks   the    case    of  personal  infection  is 
even  stron£,ei', 

REX  V  Mc   DA]II£LS,    p.    421.        Deft,    and  3   others,   with  a 
viev/  to  obtain  a  re?/  rd,    falsely  accused  X  of  hi-ehway   rotobery, 
who  on  their  evidence  was    convicted  arid  execut-ed,      Defts.. 
were    then   irxdictod  for  and  convicted  of  murder,      Jud^eaient  was 
respited  because  -of  doubt    as    to  whether  the    indictment   would 
lie   and  the.   daits,   wsre   subsequently  discharged. 

This  was   surely  aurder.      The   result    of  the   case    did  not 

go   on  the    ground  that    it   v;as  not  r-urder,    but   on   a  political 

reason,   probably  because    tlie  co'urt   did  not  want    io  discourage 
infoiTr.ers , 

RfiGINA  V  POCOCK,   p«   423o        Defts.   were   trustee',??   of  a 
public'rcad  arid   failed   to  raaJ^e    contracts   to  keep    it    in  repaii", 
X  was    thrown   out    of     his    cart   while-  driving  along  said  road 
arii   died  from   the    injuries    received.      HELD,   defts,    onxii-ssion 
was   not    the  direct    cause    of   the   death,    and   to  hoM   deft« 
guilty  the  duty  nrast    be    sud".   a   one   tmt    the   ordinary   conse- 
quence  of  neglecting  it  would  be  di^ath. 

This   decision   is   ri^ht   because    the   consequence    is   too 
remote  from  deft's   act,    arii   it   is   not  decided  that    this  kind 
of  ari  act    is  tiqvqt   crimirjai;    it    is   simply  a  question  of  re- 
moteness.    The   reason  \7hy  deft's   act  here  v/as  too   remot-e     was 
because    it  was   not   their  dut;-   personally  to   repair   the    road, 
but  merely   to  vote   repairs   and   conti'act   for   tiiern.      If   the 
deft,   hei-e  had  been  a   suparintendant    in  dire<;t   charge   of  the 
repairs    the   result  inigi-it  have   been  different, 

K£GI1IA  v   GPuCEirv/OOD,  -p.   424..       Indictment   for  murder  arcL 
rape    oxi  a   child  under  ten.      Deft,   had   connection  wi  tl~.   the 
chil'd  arid   coi.iia3.mi cat ed  t-o  her  a  venerial  disease,    of  which   she 
died,      HELD,    if  the    deft,   had  connection  with    the    child   and 
she    died   from    tl~.e    effects    of   the    rape,    that,  would    co-nstitute 
such  malice    as   would    justify   a   conviction  for  murder. 

Thex'e    is   no   difficvilty-  in  finding   the   necessary   intent 
for  a  homocide  here   as    deft,   was    engaged  in  a    crirrie    of  vio- 
lence.     ThSi-e    is   al3o    no  difficulty  about   finding  the    criminal 
act   as  the    deffc„'  caiiiivuu-iicated   the   disease,    although  he  may  not 
have   intended  it.      It    is  not   true   that    the   jury   siiall  have   the 
power   to    carry   over  iralice,  as    tiie.   judge    puts    it,   for   it    is 
carried   over  by   law   fro2ii   the    facts    if  the    injury   is  dona   in 
tlie    course   of   rape, 

REGINA  V  COMDE,   p.   424.        Indictment    for  wili'ia  murder, 

82 


The  deceased  died  from  starvation,     HELD,    if   the   de-ftso   vril- 
fully   v/itheld  food  eaid  so   caused  death    it    is  murder.      li"-the/y 
negligently   but  not    wilfully  v/itheld  food   it    is  niaji33>auglit-er. 

This   is    cood  lav/o      If   defts,   witheld  food  v/hile    they  had 
it    in   their  pouer  to   give    it    to   tlie   childj    and  if   it   \Ta5    their 
duty   to   provide   for   the    child,    they  are    guilty   of  hoxaocide   if 
this    caused  tha    Jeatho  -    ■ 

"JIGIMA  V  TO\V£RS,   p„   4-25 «        Deft,   having  a   greivance  a*- 
gainst    a  wonianj    sezzed  her  by    the  hair;   her  screaining  fri^t- 
ened  sil    ird'ant   v/Lich  she  was   liolding  arid  the    infant    became 
black    in  the    face   frou  frif^it    and   continued  to  be    sick    till 
the    day   of   its  deaths      F£LD,    if  under  the   circ'ar;jstances   the 
^nry   are    convinced   that   the   death  v/as   the'  direct   result,    of 
dert's-  act    ^   he    is    guilty   of  mansla'j.^hter,      Verd.ict,   not 
gruiltyo 

If   the   deat-h  was    the  proxitiate    consequence   of    the   deft's, 
act  lia   is   £,i;ilty^      That    is,   harming  a  person  by  f rigl-^tenirig 
hiiu   is   one    of   the  ways    of   cohiiiitting  a   crjine    by  physical   vio- 
lence o- 

Note   po    426    -  the    case    in   this   note    lays    it   dovrn  as   a   general 
I'ule   that  physical  violence    is  necessary   for  a  ci^ime    and   that 
a  man  caiinot   be   criminally    res-ponsible   for  the  death    of  arothr 
on  account    of    any  iiiental  shock.      In   the    actual   case    there    is 
no  doubt    tliat   deft  »   v.^as   ?j.ot    guilty  because   he    did  not  prox- 
imately  cause    the  v/oman's  heart   to  break   or  da  any  a-.;t   which 
he    ou^it,    to  have   known  ^<?ould  cause    this    resiilt.      But    si rp pose 
an  old  man   is   lying  very    ill   and  his   son   comes    into   the    room 
and   is    inironned  by  the  -doctor   that    if  he    speaks   a  harsh  word 
it  Y/'ill  kill  hi'S   fa  there      The    son  cLoois    speak   a  harsh  word  and 
the   father   dies,      Feale    thiriJ^s  no  doiibt    the    son  is    guilty   of 
murder,      In  most    cases    it  woMld  be    difficult-  that    the    death 
1-esi.Uted  from  the.  n'lental   injury   or    th^at   defto    ought    to  have 
knoT3.n   that    such  would    be    tlie    result    of  his   act,      Eut    there    is 
no    siidi   line   as    is    3aid  dov/n    in  the    case    in  the    notej,    that 
thei'e   ..-.ust    be   physical  violence    or  threats    of   i'i    in  every 
case..      If  tl'is    cause    actually   operates    and  there    is   intent    or 
negligence    on  the    part    of   the    dsfto,   he    should  be  h.el.d.,   what- 
ever meaiiS  he    eiriployedc 

?.5GINA   V  KALLIDAY,    p.    -27,        Indictment    lo r  mali-ciously 
inf lictiin.:;:  grevious  bodily  haru  on  deffs  wife,      Defto   vas 
dru.nk   one.  by  his   acts    ani  vroivis   caused  a   sense   of  tainediate 
dar^ger   in  the  iniud   of   the    voma,nj   who  for    safety   j-umped  out   of 
the  window  aiid  broke    her   leg,      H.ELD,   as   the  woman  was  'reason- 
able  led  to  take    this    act   from   the    aotiorjs    of   the   deft 09  he    • 
should  be   convict^^d, 

S3 


L^ 


Graiit :.:.£,  that    the  \7omai-i   did  the   act    in  fear,    the  doc- 
trine  of   reasonable   appx'ehension  enters    in,    because   if   she 
acted  without    reasonable    ^jrouuds,    deft,    acted  neither  with 
intent   nor  Virith  ne£^i£enc:e    and   so    the   necessary  mental  element 
would  be    absento      Therefore    it    is   riot    so  much  a  question  whet- 
her the   injured  party  acted  reasonably,  -but  whether  there  lyas- 
intent   oi-  ner-iigence    on   the    pari    of  deft.;    so   if  deft',    knew 
she   was    liable    to   act  unreasonably  he  v;ould  be  guilty.      In     • 
tii  is    case    the    act   of    'A\e    deft^    is   the    saxiie  as   if  he  had   taken 
out    a  prop  froLi  urider   tiie  woiaan,   but    ii   ho    sinply   frir.^itens- 
her  so    that    slie  jumps   out,    it    is    ihe   sacie   as    if  she  was  pushrp 
ed,    and  the    criminal  act  was-  cavisinf"  her   to   lose    her  balance. 
Retina  v  Martin,    S  Q,   E «    div,    54,      Deft„    put   an  iron  bar  ac^ 
ross    the   exit   of  a   theater  and  then  \7ent    in  arui  yelled  fire^ 
Probably   the   criminal  act    tliere  was  hir,tin£;  the    theater   goers 
v/ith    the  bar,   but    there    is   no   differerice  whether  -a  thing  is 
applied   to  a  ir-aii  or  a  n.ari   is  applied  to    the    thingo 

HEIIDRICKSCM  v  COIULlOiTJ/iiALTH,   p.   430,        Deft,    and  his  wife 
having  quarrelled,   he  raade   threats   of  viole^nce    to  her  arid  si:ie 
rari    out    of   ti-;e  house    and  died  fro^:i   exposure,      HELD,    if  the 
daft.,    caused  the  deceased   to  leave    fron  fear  of  death  or  bo- 
dily harm  and  her  fear  was    reaso/iable    a/id  vyell  grounded,   he  •' 
is   si^ilty    if  her   dea.bh  v;as   caused  by   exposure  due    to  his    act, 

Deft»   did  iiot    intend   to   kill  his  "<7i  fe   here   a^id   there   was 
no  ne£ii£,ence   unless    the    result  v/as    the    reasonable    arid  proba- 
ble  consequence    of  his   act,    as   he    could  orily  be   expected  to 
act   accordi/ig,   to   the    effect  he-  ouf>it    to  have   anticipated  that 
his   act    would  hjave    on  his  wif e  o     HOMOGIDE   is   the   act    of  kill- 
ing a  huiiian  be  inr   by   the   application  cf  force    to    the    body. 
The    speakirjLg   of  v/ords  was    not    the    act    of  homocide,   but    the   act 
of  physical  violej-ice   v;as    t^^e   fatal  application  of   cold  to    the 
body;    arid   so    if  deft,    is   responsible   for   tiiat   he   is   responsi- 
ble  for  the    homocidCc      The    only  wqy   to   se.ttle    these    questions 
is  to   select    the    force  whid;    causes   d.eath   and  to    see    if  the 
deft,    is    responsible   for   it;    Hov/ever   the    deft's,    ov/n  physical 
act    is   not  necessarily   coincident   \7ith   the    act   of  physical 
violence   if  he    is    respoiisible   for    it,    as   -if  he    employs-  iriTiO- 
cent    agents   or   if  he   acts    as    in   this    case.      But   deft 's.    act 
here  was    not    the    cause    of    the   v/oiiian   staying  out    in  the   cold 
because    she   could  have    rone    into   a  dozen  ho\ises,    arid  it  was 
her  own  act    ij-i   drioosin^    to   staty   o:.t    of  doors;    therefore  his 
act   was   not    the   cause    of    the   fatal  application  of   cold,    as 
the    fatal   applicat  ion  was    not    se riding  her  -out    into    the    cold, 
but  keeping  he'^    there   till    it   became   fatal.      Granting,    how- 
ever,   that  his   act    was    the    cause    of    the    death,    the   question 
arises  whether  he  had    a   reasorr  to    suppose    she  would  do    what 
she   did  ori  accourit   of  his   act.    arid   if  he    could  not  have    ex*- 


pected  he-r  action,    the   fiecessai-y  i;iental   element   of   the    crime 
is   absent, 

STATE  V  Cft:.RI£N,    p.   4b5,        Indictment,    for  uurdex*.      The  de- 
ceased had  heari    ti'ouble   at    the   tln^e   of  deft's.    assault,    and    ■ 
caedical   testimony   shov/ed  that,   \indsr   the   circumstances,   his    - 
dcatVi  was   the  natural   aiid  probable   consequence  of  ti-.e   assault, 
H£LD,    the   fact    tha  "i    the    deceased  \7as    affiicVod  with  a  disease 
does   not   constitute  a  defence   for   the   deft's.  ^jrroncful   act. 

Deft,    is    giailty  because  he   did  one   cr»L'rie   in  the   course 
of  another,   and    so    there    is    imputed   intent. 

SUi;iiARY,        Iri  any    case    of  personal    injury   it  must,   be 
discovered  first,    just  \rl~jxt   the  act  v/as   the    caused   the    irguiry. 
Second,   v/as    deft,    the    cause    of    the    injury.      Third,   did  deft, 
have    the   general   or  specific    intent   necessary.      The  means 
adopted  may  be    of  any   sort   provided  it   can  be    said  that   they 
were   the    cause    of  the    injury. 


SECTION  TITR£E.'        ASSAULT   BATTERY. 
REGIilA  V  RENSKAW,    p.   45'i,         Indictment  for  a  misdemeanor, 
with  a   coiUit    for  assault   and  battery.      Deft,    left   a   child 
swathed   in  a  piece   of   flannel   at    the   bottom   of  a   dry   ditch, 
but   the    child  was    not    injured.      HELD,    if   ari  exposure    to    the 
inclemanc?   of   the   weather  can  constitute  an  assault   and  bat- 
tel^-,   it   can  only  be  vheri.   the   person  exposed  sui'fers    an  in- 
jury fra.i    ti;e   exposure. 

This    is   a   case    \7here    tlie    chili    is   exposed  but   nothing 
happens  to    it    and    so  tliere   -aras    rio   assault    arid  battery,   for 
the    assavilt    arid  battery- is    reaching   the    child's  body  v/ith  'the 
forces   to  wl-dcli    it    is   e^jposed,    ard   riot   merely   the    exposure, 

REGIITA  V  CASE,   p.   42:),        Indictment   for  assault.      Deft,, 
a   ph;,  sician,   under  pretext    of  medical    treatment  had   carnarl 
corinection  v/ith  a   girl  of  fourteen,   'iVho  made    noresistance, 
HELD,    defto    is    guilty  because    the   £irl   consented  to  an  act 
wholly  different    from  that  whid.-.   was   done,   arid  hence    there  was 
no  consent. 

The  ^irl  did  consent  to  the  physical  act  but  the  consent 
was  obtained  by  fraud.  The  technical  act  of  battery  was  also- 
present  whethe-r  there  was  consent  or  not,  and  it  is  a  questicn 
of  excusirig  it.  Consent  is  not  a  jixstif ication  per  se,  as  is 
-shown  fro:.-!  tl'.e  fact  that  it  is  a  justification  in  a  wrestling 
match,  but  riot  in  a  prise  fight;  so  like  all  otlier  excuses  for 
a  criminal   act    it    is  a   question  of  public   policy.      Fornication 

85 


is   not    a   crime   at    Goumori  Law, where   permitted,   nor   i-s   the  whole 
difference   in  Uegina   v  Case    in  the   element    of  fraud.     Bat    the ■ 
difference   is  because    the   act   taltes   away   the  virtue   of  a   girl 
against  he   will    arid   so    it    is  acairist    public   policy    that    the 
consent    should  bo  a   justification;    therefore   a  ■jor^n.'s   virtue 
is  protected- against   this   kind  of  deceijjo 

■  REGIMA  V  CLARENCE,    p,   433 o        Indictment   for  assault o 
Defto   who  Vv-as    infected  with  a  venerial  disease  had  corin-wction 
with  his  wife  Vfithout  -iriforminf;  he  r  of   the   fact    arid   corntriunica- 
ted  the    disease   to  her,      HELD,    the  majority   of   the    court  held 
that    deft,   was   not    guilty   of  assaiilt;    but    the  minority  decided 
that    the   act    diarrred  was  not    involved  iri  or  sanctioned  by   the 
marriage   contract   and  was    one   for  M-. ich  rio  consent  was   given,, 

BEale  agrees  v,rith  the  minority   of    the   court   arid    thinks 
there  was    ari   assault.      The   v/ife    consented  to   the    coririec tion, 
but    ^e  did  not    consent    to    the  -cammuriication  of   the    disease, 
arid   these   are   two  different   acts.      It    is   like    the   case   where 
a   poisorious    substance    is   put    in  a  fig  arid  a  persoii   consents 
to   eat    the   fig,   arid   it  was   held  an  assault   to   give   the    poison 
concealed   in  the   fruit.      It  would  be  different    i'n  a   case 
where   the    substarice    is   from  its   nature   poisoriOus,      Trie   case   of 
Regina   v  Clarence   is   the   same   as    if  deft,  had  smallpox  to  his 
knowledge   and  had  'coririectiori  with  his  wife   and   so   coi.uiiuriicated 
the   disease    to  hero      There    is  no  doubt    that    there   is   an  as- 
sault   in  tl-iat    ca  se  o      Beale   thiriks   the    statemerit   of   the   case.    / 
as    an   analogy   to  a   civil   action,    on  page   447,    is   urianswerable. 
This   class    of  cases  presents   difficult   questions   of  fact   some« 
tirrjos   as   to  whether   there  are   one    or  tv/^o   substarices,    but    if 
tha-t   is   settled,    thei'e    is   no   theoretical  difficulty  virith  the 
law.      If  a  man  consents    to  catch   a  base  ball  he   does   not    con- 
sent   to   catch  a  dyriamite    cartridge   attached   to   it,   but    if  a    • 
hole    is  made    in  the    ball   arid  the   dynamite   put    in  and   concealed 
some  might    say  he   corisented  to    catch  whatever  was    conjealed 
in   the   ball;    but  Beale   thiriks    tliat    is   just    like   Regina  v 
Clarence, 

Granting  for  the   moment  p    in  Regina   v  Clarence,    that   the 
connection  and  the    coaaiun i ca t  i ori   of   ti-.e    disease  were   not   2   - 
different   acts,   -thje.    question   then  arises  whether  the    fraud 
bars  the    consent.      And   it    is   v/ell    settled,    from  public  policy 
alone,    that    the    courts  will  not    go    irito   ani-    question  connected 
Biiiiply  with    the    sexual   irxtercourse    between  husband  arui  wife; 
but    in  tlie   case    of   other  persons,    the    question  is   whether  the 
harm  is   serious   enou^i  for  public  policy   to  vitiate   the    con- 
sent,   as    in  Regina  v  Case,   arid  v/liere    the  hann   is    very  serious 
there    is   no  doubt  'that    conserit    obtaij-ied  by  fraud  would  not 
bar  the    indictment.     Also    where' a  man   impersonates   the  hus- 
bauTidj   there   is  no  doubt   an  assault,   but   not    rape.      There   is  no 

SG 


difference  vrhether  a  man  iisr  having  intercourse  \rith  a  prosti- 
tute  or  not,   as    a  person  carmot ,    as    against    the   Piiblic,    con- • 
sent   to    the   infliction  of  severe  bodily  harm   ,    althoucii  he  may 
so   act   as   to  tal^e   av/ay  any   ch*ance   of  a  civil  action, 

COrvBvtOIWEAI/TK  v  WHITE,    p.   450.        Indictment   for  assault      "" 
on  one  X<,      Deft,   was   driving  along  a   road  whidi   X  arid  Y  were 
repairing.      Y  called  upon  him  to   drive    in  tlie'  middle   of   the 
read  arid  also    reprimanded  him,   whereupon  deft,  made    a  threat 
and'  pointed  a   gun  at  X  arid  Y,      X  was    put    in  fear  but  Y  was 
not.      H£LD,   deft,   was    guilty   of  an  assault   on  X, 

It    is    in  the   interest    of  public  policy    to  keep  a  mari  fran 
beirig    frightened.      Bishop  defines   a   criminal    assault   as    an  at^ 
tempt    to   coicmit   a  battei'y;    this    is   not   true   and  his  mistake 
arises  from  a  mistaken  reading   of  Mawkin' s -definition,  where 
it   is   defiried  as   an  attempt   or   offer  to  comiiiit   a  battery. 
Be  ale   thirxks    that   fear    is   not   necessary   for  a   criminal   assaiilt 
when  there    is    ari  attempt    to   coitmit   a  battery,   but   that    it    is 
necessary  v/hen  there    is  merely   ari   offer  to   corxiit   a  battery 
or  an  intent   to  frigiiten, 

'  COlvE.lOmVEALTH   v   ST  RAT  TON,    p.    451.         Indictment    for  assavat. 
Deft,    administered,    in  some  fruit,    certain  drugs   to  a  woman 
which  he  bougiit   as   love  ppwders   and  thought    to  be  harmle-ss; 
he  wished  to   try   their   effect   on  her  ard.   sl:e  was   injured, 
HELD,    the  physical  act'  was    iriflicted  by  the  voluntary  arjd  un- 
lawful act    of  the   deft,      Ke  knev;   the   substance  was  not   ordin- 
ary food  and  triat    the    girl  was    being  deceived,   which  decepticn 
was    equivalent    to  force    in  overpowering  i;er, 

Thei^e   were  two  substariCes  here   and  there  was    no   consent 
to  redeive   the   di^ug,    although  there  was    consent    to  receive 
the   fruit . 

PEOPLE  V  MOORE,    p.   453.        The  deft,   was    a-i   employee   of  a 
comparii'  which  owned,  a   large   tract   of  land  on  \';>Adi    the   village 
in  qiaestion  was    located.      X  was   a  pedler  arid  had   customers    in 
the   village,    and   deft,   was    employed  to  prevent  his   coming  into 
the   village,    with  instru-ctioris    to  us;e   re  as  o  mole   care   and  not 
UTinecessary   force.      Deft,   accordingly   seized  the   pedler 's 
horse   arid  prevented  him  from  entering.      HELD,    the   assault  was 
not   justifiable, The    streets   w'ere   open  for  such  public  use   as 
was   incideiit   to    tlie  v/ants   of  the    people,   and   tlie    inliabittjnts 
had   a  rigLit   to  buy   of  any  tradesman  they  wished, 

A  battei'y  need  not    consist    in'Uctual   physical  force  ap- 
plied to   the    person  directed,    but   when  actual  physical  injury 
takes  place   it    is    sufficient. 

S7 


.^ 


oin.lIARY.        To   consii-ute   a  batte-ry  iihei'O  aust    be  an  ap- 
plicatiori  of  force    -  Re;;,ina  v  P.ensr.aw,      .\lt!iOU£,:i  t'.i^i'e    is   con- 
sen'i    it   GOiiiet. L.ies  has  no  lef;,al    effect    on  accovmt    of  public 
policy   ~  Re^iria  v   Case,     Zut    in  the    case    of  rape   consent   is   a 
part   of   the   ci'inis  ancl  consent   destroys   a  possibilit..    of  rape 
even  thouj-h  the   consent    is    obtairicJ.  by  fraud.      'Tx^ere   there   an 
2   separate   svibstarices   a   consent   to   receive   one  does  not   pre- 
vent  the   coj.iiaunicat ion  of   the    other  iVoi-i  beirig   ari   assault   -^ 
Regiria  v  Clarence;    but    to   supply   the   criminal   intent    the  re  > 
rar^t    be   an 'intent   to   coiur.uriicate  tl;e   force,    or  ner,lir;enco    in 
avoiding;  it.      An  assault    is   any  urilav/ful  physical  force,    part~ 
ly   or  Wholly  put    in  laotion,   v;-hich   creates    in  another   reasona-- 
ble  appreherision  of   ii-jLiddiate  physical  vio- 

lence; but  if  deft,  is  en^^aged  in  an  urilawfijJL  a-ct  the  fear  of 
the  victim  need  rict  be  reasoiiable.  If  the  deft,  is  en^a^ed  in 
a  lav/fiil  act  and  the  victiirj  has  uru'easonable  fear,  the  deft, 
has  neither  actual  intent  nor  is  criuinaliy  ne^^lig^ent,  and  so 
Beale  thirties  fear  is  necessary  for  an  assault  alone,  but  this 
must  be  distin£,"uished  froiu  an  atteiiipted  battery.  In  the  bat- 
tery the  force-  need  not  be  applied  directly  to  the  person  -  • 
People  V  Moore, 


S£CTIOII     POUR.  RAPE. 

R£aiIIA  V  BARRO'.V,   p.   455.        The   deft,   had   connection  with 
X  v/ho   supposed  hL^i  to  be  her  husband.      X  'Jas   not   asleep   or 
UTiConscious   at   the  tii.je    of  the    act.      HELD,    there  was    consent 
althou.^x  it-  v/as   obtained  by  fraud,    arid   so  the  offence   could 
not    be   rape, 

C 01.3.10 inVEALTK   v  BUR.KE,    p.    457.        Deft,   assisted  X   to    com- 
iiiit    rape  upon  Y  without  l\ei-'  previous    consent'  arid  while  she  was 
so   intoxicated  as    to  be   incapable   of  consent.  ■  HELD,    no   con- 
sent' was   possible   on  the  pai't   of  Y  and  so  de.ft.    is   guilty  of 
rape. 

GUI.J>,IARY,        The   present   definition  of   rape   is   tl-:at    it    is 
conrisction  without   consent.      If   there    is   consent   to  the   sexual 
act   the  113    ia  no  rape,  no  ii:atter  hov/  much  fraud  is  used  to  ob- 
tain  consent.      This    is   showri   in  the   idiot    cases;    where   the 
idiot    is   still    capable   of  exercising  a  v^ili,   althou^l-i   she  may 
be  BO  much    ati    idiot   as   to  "c2.ve   only    the    anii^ial   passions, 
there    is   no  rape;    but    if  she    is    so  ftir  art    idiot   as   to  -iiave    no 
will  and  not    to  be   able   to   £;ive    consent,    there   is  rape.      If   a 
man  Lapersonates   the  husband  while   the  v;ife    is   awake,   and  if 
there   is    no   coercion,   there   caijriot   be   raie. 

8S 


S£C?10I1      FIVJ:,        I.iURDxlP.o 

YOIIG^S   GASii:,   p«    4G2,        HELD,    if  an  office^-  attCiiipts   to 
preserve  peace    iri  an  af-fray   and  is   killed  in  the   execution  of 
his  of  rice    it    is  xirarder.     The  lai.7   pres'Jxnes  malice  prepence   be- 
cause   the   dcfto    set  himself  against    the   justice   of  the   realm.- 

REX  V  TOI.iSON,   p.   4C2»        X  at  oejripted  to   separate   the  deft, 
and  his  wife  who  were   fi£i.ting  and  v;as   thrown  do^vn  by   the  deft 
upon  a   piece   of   ix'on  and  received  fatal   injuries,      n£LD,   wherr- 
ever   one   attempts   to  pres-erve   the   peace   and  is  killed  it    is 
murder  providinr,   the    deft,    krie;/    the    deceased  was   actln?;  for 
tl-^t    purpose  0 

GREY'S   CASE,   p..   463.        Deft,    sti'iick  X,   his    sei*vant,   with   ' 
a  bar   of   iron  upon  an   inipudent    reply   received  by  httn  from  the 
servant.      X  died  fran   the    injuries,      HELD,    a  x..aster,    in  the 
correction  of  a  sei*vant,  iimst   use   such  iristruments   as   will  not 
probably   cause    death,   and  if   others   are-  used  and  death  ensues 
the   lav7    judges    it    to   be  malice    prepense, 

REGINA  v   SERTJE,    p.    4G5,        Deft,   wilfully   set   on  fire   a 
house  J  which  i-ie   arid  his   fajinily    occupied  and   the   de-ceased  was 
killed  thereby.      The    eviderice    shxov/ed  tlat    the   deft,   i.dglit   have 
set   the  fire   to    get   the    insurance  mo-ney   ard.   tl.at  he  must   have 
knov/n  the    iranates  were   put    in  danger.      HELD,    if   ariy  act,  which 
is  known  to  be  dangerous   to   life  ,    is   done   for   the    purpose   of 
comnitting   a  felony,   and   it    causes   death,    it    is  CiUrdera    - 

It    is   generally   stated  tliat    any  hoiuocidfi    during    the    com- 
mission of  a  felony   is  murder.     This    is   not    correct   and   only  • 
homocides    in  tiie'  course    of   felonies   vviiich  naturally   eridanger 
1  i fe   are  murde  rs  o 

STATE  V   SI.IITH,    p,   4G8,        Deft,    fired  at  X  vrho  V7as  on 
horseback   but  missed,   and   the  bullet   killed  a  boy  who  was   sit- 
ting at   some   distance    off  unseen  by    the    crowd.      The   judge 
Cliarged  that    if   the    deft,   fired  v/ith   intent    t  o  do    serious    in- 
jury  it  was  murder,    but  df  vrithout    tl-^a   intent    to  kiH    O'r   in-- 
jure    it   was   nianslaughter,      HELD,    the    cl::arge  was    correct.      The 
act.   done    indicated  an    intent    to  kill   said,  was    calculated  to 
produce    tl^iat    efTect   as   death  was   a -probable    consequence, 

HADLEY  V  STATE,   p.   469,        HELD,    the   law  presuu^es  malice 
in  intent iorial  homocide  until   the    contrary,"   is    shown,   arid   all 
homocide    is   malicious  unless    jiistified,    excused,    or  alleviated 
into  manslaugiiter ,   arid  such   circumstances  must   be   proven  by 
the   prisoner  uriless    they  ai'ise    out   of  facts  proven  against 
him. 

89 


'     SUIv-I.lAP.Y.        The   points    in  houiocide   are   arbitrary  but   aim- 
pie.      ATiy  difference   in  the   grades  of  homocide  is    a  difference 
due   to  statutes,   for  at    Goimion  Law,    if  personal  violence   re-  ■• 
siilted  in  death,    it  v;as    simply  hornocide   and   the    crime   wa^ 
puTiished  because    of  tl.e    crimirial   act    of   personal  viol3nce , 
Tl'iei'e  was    early,   probably  by  Canute, a  distinction  mada  by 
statute   between  diffei*ent   kinds,  hardly  degi-ees,    of  homocide, 
v;hich  was    to    the   effect   that    artless    tlie    offender  cou3j1  be 
produced  or  uriless    the    pei'son  slain  v;as    an  Eriglishjuari,   the 
huiidred  in  v/hich    the    person  './as  killed  shouM   pay   a  firiS   to 
the  Kirig,,    called  a  Liiurder   fine,    arid   the    term  murder  \?as    later 
carried  aver  to   the    nanie    of    the    kirii    of    the    offence ,     But 
there   were    no  diffei'ent   derrees   of  honooide    as    yet -arid  dt 
m^de  no  difference    as   to    the    puriisruiient    of  the   criminal.      The 
proof  of  Encleschi-re  arjd  the    paiinerit    of    a  murder  fine  was 
abolished  in  14  £d,    3rdo ,    but    the   riaxae  was    so  well   known  that 
it   was   kept'  alive  arid  carne    to  mean  a   certain  aggravated  kind 
of  homocide.      Eut    by   a   statute,    24  Henry  oth,   murder  was   de- 
fined as    killing  with  ii-al  ice   aforethoiight ,   arid  was   pirraslied- 
in  a  particular  way;    arid   this   was   the  creation  of  murder   as    a 
different   de'gree    of  homocide    and    it   distiriguished  murder  from 
manslaughter.      Gerioraily   speaking  the    line   of  decision  as    to 
the  meariing   of  the  words    "malice   aforethought"   was    in  line 
v/i th    the    coem on  meaning    of  the   wordj;tIat    is,    triat    intentional 
killing  was   nau^der  and  uriinbent iopal   killing  mansla'^ighter,    but 
there  were  man:'   and   artificial   exceptions.      So   the   specific 
intent    required   in   a  niurde  r   is    not   alv/ays   an   intent    to  kill, 
althougli  gerierally   so;    but    iri   the   cases  where   an  intent    to 
kill    is   riot   the    specific    interit    required   ,    the    intent    is  rot 
treated  as    constructive    i-ntent.    but   as   the  actual  kind  of 
specific    intent   riecessary. 
Wl.ere  iininteritiorial  kiHirig  was   murder :- 

1,  Wl.ere   the   deft,    resists   a  lav/fr.l  arrest.     This    is-  an 
artificial   case,    bui    if  death   results   from  the   act    of  deft., 
it    is   murder,    albhougL  death  was    the    last    thirig  irie  ant    arid   al- 
though   the   act   ^7as    not    in  the    least  measure-  adapted  to   the 
killddg  -  Young's    case,    Rex  v  Tomson,      Deft,   hov/ever,  must 
kriow    that   an  arrest    is    interided  arii   tl-at  th^e    arrest    is   as- 
sumed to   be    a  lawful   orie;    but    if  he    resists   on   a  doubt   as  -to 
its   beirig  a   lav/ful  arrest  he   takes   the    risk,   uriless  he   bona 
fide   believes    it    to   be   riot   a   lawful  arrest  . 

2,  Killirig  wliile    in  tiie   volru'itary  use   of  weapons    danger*- 
ous   to  -life,    as    if   the    deft,   v/isl-.es   simply   to   scare   and  kills- 
instead.      This   class    is    capable   of  great    ex-tension  as    to  what 
are  v/eaijoris   dangerous   to   life    -   Grey's    case, 

3,  Killing  in  the   cours-e  of   the    con-iiiission  of  a  felony. 
This    is    too  broad  a   statement  ho.,ever,   arid   rightly   stated  the 
rule    is,    that    killing    in  tlie    cou5E»st5'^*t>f  the    cormitssion  of  any 
felony  of  violence  where   the   commission  of  tliat    crime    itself 

90  .  . 


■'■■  -h 
.1 


is   dangei^ous    to   life,    is  mux'der   -  Regina  v  Seme,      ,    _^ 

says   that   killing   in  t^e   course    of  arxy  vian^erous  wron^  is   als' 
mux'der,    even  if   tne  wron/r;   is  not    a  felony,    such  as  usirig  dan- 
gerous weapons    iii  the   course    of  sorue  mino-r   cri/^ie;    Eeale  thinks 
this    is   the    correc:;   statOi.ient   of  the    rule. 


SECTION      SIX.         DEGREES   OF  MURDER o 

Ii£lGH70N  V  PEOPLE,    F»    '^^^»        HELD,    if  the   killing    is  not  '" 
the   instant   effect    of   impulse,    if  there    is  hesitation  or 
doubt    to   be   overcome,    a   choice  cxade    as    the    result   of  thought, 
liowevei-  shori   the   strur,5le   betv/een  t:.e   intention  arid   the    act., 
it    is    sufficient  'to   cl\ainicterize    tlie    crime  as   prerricditated  and 
de  1  i  b  e  r at  e  niur d  e  r . 

The   establisiixaent    of  degrees    of  uiurder  by  statute    is   a 
metliod   of   controlling   the   discretion  of   the    courts    in  asses- 
sing punislJiient .      The   first    degree   of  murder   is   usually  pun- 
ished by  death,    the    secorui  -by    ixiiprisoriiiiCnt    for   life    or  for  a 
long   teriii  of   year.      In   IT,   K,    arui    soi^e   other  states  a  nan  is 
not   allowed  to  plead  guilt;-    to  murder    in   the    first   degree,  arjd 
if  he   does    an   inquiry   is  held  as   to    the   degree   of  his    grailt. 
The    result    in  general   is,    tixi :    intent iorial  homocide   -jhidr.    is 
murder,    or  horuocide    in   t-.e    course    of  the    commission  of  very 
serious    criiifis,    or  coii"ii:iitted  uTider   peculiar   circumstances, 
is  i:.urder   in   t;ie   first    degree;    and  other  kiruis    are    of  tlie    sec- 
ond degree,    bub    is  hard  to  lay  down  any  hard  iniles   as   to  just- 
what  hoiiiocides   are  laurders   in  tl\e   se  corjd   degree.      A  distinc- 
tion is   sometimes  made    betweeri   certain  cr-ael  kinds    of  murder 
arii    those   supposed  not    to    be    sj   cruel. 


SECTION   SEVEN,   MANSLAUGHTER. 

LORD  i.IORLY'S  CASE,    p.   4-73.        HELD,   no  wor^are  -siifficient 
provocation  as    to  r.Kke  killing   for   such  manslaughter.      But    if 
af tei'vi'ards   a  fight-  ensues   arid    one    is     killed  in  sudden  heat, 
it    is  L^arislaught or.      If  af  ieinvards   t\7o  persoris   become    angry 
and  then  suppress    their   ariger,    but    after   a  time    "reasorable  for 
thed  r  blood    to    cool,    they   f i  glw    arid    orie    is  killed,    it    is  mur- 
der. 

HUGGETT'S  CASE,   p.   474.        X,   without   a  warrant,    i^ipressed 

Y  into   the   King's   service.      Deft,    pursued  X   in  order  to   rescue 

Y  and   in  the  fiyit    which  ensued  a  persori^vms  killed,     HELD, 
any   illegal   arrest   or   restraint,    although  submitted  to,    is   a 
provocation  to   anyone   to    attempt   a   rescue,    and    if   in  such   ca- 
ses  death   ensues,    it    is  manslaughtei', 

91 


REGINA  V  STEaiAJ^I,   p.   477,        Deft,  was   accosted  by   a  woman 
to  whom  he  inaJii   art   inipudent   reply  and    die   icamediat'ely   struck 
hiiT:  a   severe   blow   in  the   face   di^wing  blood.      Deft,    thereupon 
pursued  the  woman   and  Killed  her,      HELD,    it    is  xnarislaughter 
and  not  murder  as    the   srrart   of -t-he  wound  and   the   effusior/  of 
blood  mi£^it  have  kept   the   deft's,   blood  hot   until  liis   act, 

FRAY'S   CASE,   p.   477,        A  threw  a  man  into  a/  pond^   without 

apparent    intent   to  killl  hini,   but  he  was   drowned.      The  man  had 

just    picked  A's  pocket,     HELD,    it    is  manslaughter   arid  not  mui^ 

der. 

y 

The   case    is  riardly   correct   as    the    act   was    one   dangerous 
to  life   arid    ore   who  ckies-   it,   for  vdiatover  purpose,    should  be 
held  to   ti-i.e    consequences. 

It  * 

REGINA  V  THOMPSOIT,    p.   4  77.        Def t . ,    a   journeyman,    left 
the   service   of  his  iraster   in   consequence   of  a   quarrel  and  made 
threats   of  killing  anyone  who  made   an  attempt   to  arrest  him. 
The  master  arni  X,    a   constable,    found  him   in  the  privy   of  an 
inn  and  X  at    the  master's   directioTi  attempted  an  arrest,   but 
was   stabbed  and  k'illed  by   the   deft,      HELD,    deft,    is    guilty  of 
maris laught e r  only.      The   actual  arrest  would  have  been  illegal 
and  the   attempt    to  make   it  when  the  prisoner  could  not   escape 
arid  when  giving  notice  would  have   enabled  the  arrest    to  be 
coiapleted,    is   such  provocat-ion  that    if  deatli  ensues,    doft,    is 
guilty    of  manslaugl-xter   orily, 

REGIHA  V  WELSH,    p.   «79.        Deft,    arid  the   deceased  met    at 
an  inn  aft  ex-  a   trial   iri  whidi   a   claim  af   the   defi,   against    the 
deceased  had  beeri  dismissed.      Some  words  were   exch'anged  and 
deft,    stabbed  the    deceased,   who  had   struck   no  blovir.      Deft, 
contended  tr^t   whether   the   provocation  was   slijjiit   or  not,    it 
was  not  murder   if  he   at   the  moment   O'f  the   blow  acted  under  the 
irifluence   of   ari  urigovernable   passion,      HELD,    intentional 
homocide    is   prima   facie  miirder  Viritil   a  provocation   is   shown 
arii   the   provocatiori  must    be   such   as  might    iriduce  a  I'easonable 
mari    to  act    iri  the   arigCi.-   of  the   momerit, 

REGINA  V  ROTmVELL,    p.   481.        HELD,   words   generally  will     ^ 
not    reduce  murder  to  ma:rislatighter,    but   'onds  r  special  circum- 
stances words   alone  may    constitute   such   a  provocation  as    to  • 
have   tl-;at   effect;    arid    so   ttie    question  is  whether   She  v^ords   are 
sudi   as   woT-ild  provoke   an  ordinary  roan,   arid  riot   one   of  a  vio- 
lent  disposition,   to   commit   the   act, 

MAHER  V  PEOPLE,    p,   482,        X   saw  his  wife   artd  the   deceased 
together  under  circumstances   tendirig   to    the    belief  of  a -pur-  - 
pose   to    coi.mit  adultery.      X  pursued  them   arid   a  short   time^  af- 
ter-followed tlrie   deceased  to   a   saloon  livhere  he  killed  him-, 
HELD,    the  burden  of  proof   is  upon  the   prosecution  to   overcomB 
th£  pres-umption  of   iiinocence    both  as  to    the   act     arid  tlie  ma- 

92  •    - 


\ 


lice;    althou^J:  the  act    is    intentional,   yet    if  there   is   such 
provocation  as  would  induce    the   average  nian   tO'  act    rashly   and 
without   deliberation    ,    it    is  manslau.r;iter  only.      The    bime  dur- 
ing which  such  provocation  niay   be   recoj/iized  as   a   gro'-irid  of 
mitigation,    is   one  'of  reasonable  tiiue   urider  all  the   circum— 
starjces    of    tlie    caseo 

SUIvHIARYo        All  Tknintentiorial   killin^^s   are  inanslauf^hter 
with    the  exceptions   stated  under  murder  and  in  tho   se    cases 
wlie re   the  re    is  no   cr  isi\e    at   al  1 , 
V/hat    intentional  killings   are  martslaur^'-iter: - 

1,  Killing  iJ'i  i~-ot   blood   on  provocation  where   the   blood 
boils,    and  v/here   it    continues   to  boil  until  the   act.    is   done; 
but   if   tliere  has    been  tiine   for  -it   to    cease    or   if  for  any  rea- 
son it  has    ceased,    it   is  laurder.      There   is   no  technical  rule'> 
as    to  v/lmt   thin£.s    are   sufficient    to   constitute  a  provocation. 
At    one   tiiiie    it  was    thou^^ht    tliat  niere  •.vords    could  never   consti- 
tute   sudi    a  provocation,    but    that    is   not   so,    as    is   proven  by    • 
a   case   v-'hei-e,   urider  certairi  circuiiistances ,   a   statement    of  a 
wife    to  her  husband  that    she   h-ad  committed  adultery,  v/as  heU 
sufficient  provocation.      So   -her   is  nothing  magical  in  a  pro- 
vocation riven   oy  the  iXie  re  use    of  lan^a^^e  ,      In  reducirig  mur- 
der to  nianslaii filter   the    tosi    taken   is   t-hat    of  a   reasonable 
cian  and   not   the   nand  of  the   actual  deft.      This   is,  so  because 
defto    is   suilty  of   intentional  hoiuocide  and  the    law   artifi— 
ciall'y,    apart   froui  the   state    of  his   i.dnd,    cuts   off   sortie   kinds 
of  hoii';ocide   and  says   they  shall   constitute  manslauf/at  or   if 
tliere    is   a   siifficient      provocation  for  the   blood  of  a   reasoned 
able  man  to  biol  ard   if  there    is   not   tiiue   for  sud.   a  man   to     ' 
cool   off,  ' 

2,  ResistencG  to  an  u-Tilawfixl  arrest,      Even  intentional 
kiHine^   in  this   case    is  manslaurhter  and  not  iiiurder,      Defto 
is  not   entirely  excused  because   he    ougl^t   to  have    .rprie   \w.  th 

the    officer   before   killiri^  hira,   but   his   act    is    considered  manr- 
slauf^hter  arid  not  niurder.      '('H-iether  a  third  person  who   inter-    ' 
feres    io  prevent   ari  uniav;ful  arrest    arid  v/'ho   is   not    called  in 
by  the    resisting  party    coriiiiits  rnans-lau-ci-ter   if  ha  kills    inten- 
tionally, has  never  kteen  deteru.ined.      It    can  hardly  be   said 
that    a  mere   strariger   coi-ild  be    so    stirred  up   at   the   spectacle 
as  to  taake   his   act   laanslaug-ht er  orily,    but    if   the   3rd  person- 
is   a  relative  whose  duty   it    is    to   protect    the   person  arrested, 
there    is  no  doubt   the  horaocide    would  be  ;iE.nslau5l:;ter,      If  an   - 
intentional  killing   is   shown,    arid   if  dei^,    then  vfishes    to   shar 
it    is   only  rianslaugjiter,  he  niust    at   least    introdtice   his  evi- 
dei-ice    first;-  and  if  iiiOrely   an  intentional  homocide   i-s   proven 
it    is  nvarder.        There    is   a  peculiar  doctrine   in  Mass,   th^t  If 
simply   a  hoxi^ocide    is   sho\r/i  and  no  thin!:;  more,    it    is  presumed  to 
be  tnui'der,      Tr.is    is  not   a   good  doctrine   because   the      prosecur- 
tion  should  prove  the    intent   in  murder  as   a  pari   of  its   case, 

93 


*, 


V) 


In  uost   states  vhoi'e  murdei'   is   proven  but   there    is  no   evidence 
as   to  whether   it    is   oi"   the   first    or  second  de,r,ree,    it   is  heM 
to  tie  mux'der  of  the    second  degree;    just    as   in  mosi   states, 
where   only  a  killifie   is   pho^in^    it    is   presvtcaed  to  be  manslaugh- 
ter arid  not  murder  J 


CHAPTER     TIiIRTi:£I!,         MRCEITYo 

The   reason  v«'hy   larceny   is   a   crime    is   because    it    is   an 
injury   to    the  peaceable   possession  of  property,  -and  tiiat   the 
Public    is    interested  to   protect    such   possessions »      This  breach 
of  peaceful  possession  of  personal   property   is   necessaiT  for 
the    erirae   of  larceny,    arid  to    this    is   added  a   specific  'intent 
to   staal,  v/Lich  specific   ijite-n';    is   a  i;art   of  the   crimeo     IIo 
force    is   required  for  larceny* 


SECTION   CMEc      "RTiAT   PROPERTY   IS  THE   SUBJECT   0^  LARCEHY. 

Larceny    is   a   criiue    arairist    ciiattels   and    therefors^  any*- 
thing  wliicli    is   a  part    of  the    realty   cariTiot   be   stolen;    so  ta- 
iling an  apple   off  a   tree  with   intent   to   steal   is  not  larceny, 
but  'taking  the   saine    off   the    groiirid  with   sucl-x    intent,    is  lar*— - 
ceny,,      This    idea   is    so   fai-*   cai*ried  out   th^at    tlie   taking  of  cei*- 
tain   chattels    is  not   larceny^    because    they  are   so   closely   conr- 
nectod  i/ith   t:-:e   realty;    for   instance,   a   chiattel  deedo      There-- 
fore    tiie   property   taken   in  larceny  must    not   be  merely  personal 
property   but    i:  must   be    a   cLaltelg      So   a   chose    in  action, 
vj-hicti    is  not    tangible,    earinot   be- stolen,    but   the  paper   on 
whid:^.    it    is  written   can  be   stolen;    ho.vever,   when  there    is   a 
valid  obligation  written  on  the   laper  there    is  an   artificial 
rule   that   the  paper   is  merged  in  the   chose    in  action;    but   if 
the   obligation  is   perfori^se^    or  cancelled,    the  paper  again  be~ 
comes   the    subject   of  larceny.  -  • 

AriV  animal   is   subject    to  larceny  vi^ich  -is   capable   of  be- 
ing owrifed  as  property  and  v/hicii   is  possessed.      Wild  animals    in 
their  native   state   are   of   course   not  possessed  and  the    i-ule   is 
tiiat    animals  which   are    reduced   into  possession  are   subject    to 
larceny   if  they   are    the    subjects   of  property   at   all,      Eut 
there    is    afi   artificial  Cor.u..on  Lav/    riiie   tiiat    only    those   animals 
whicli   are   domestic    cattle   or   those   useful   for  food,    are   sub- 
jects  of  property^      This  -includes   such   ajiiznals   as    sv/ans ,  'pea- 
cocks,   arid  the    :,ikd,   but   excludes   dogs,    cats,    parois,    etc, 
Modei-n  statutes  have  done  av/ay  with  this  distinction  more  or 
less  arid    it    is  very   eoximon  at  present    for    statutes   to  exist, 
rraking   all  personal    cliattels   subject    to  larceny,    and    this    tr»- 
cludes   all   animals  vliich  are   possessed,   whether  useful   or  not. 

Things  which  are  substantial,  but  are  in  a  liquid  or  gas- 

94 


eous   state   are   as  ;v.uch   subjects   of  lai-ceny  an   solids,,      Air 
cartnot   be   stolen  because    it    is   not   subject   to  ownei'ship,    not 
because    it    is   not   liable   to  be    stolen;    so    a   chemist  wlio  has 
oxy c^n   in  a  box  may  have    it    stolen.      But    a  mere   force    cannot 
be    stolen  ar*i  there  must   be   a   substance;    therefore   one'  canriot 
steal  force   off  a  pulley   or   power  off  an  electric   v/irso 


SECTION      TY/Oo         POSSESSION, 

The  takinr   of  possession  raises   tv;o    elements;    a  physical 
arjd   a  mental  a      It    is    aci*eed  th^t   these   2  elements   are  neces- 
sary aithoU£i.   it    is    not   agreed  just  what    the    2  elements    are^ 

(a)     The    act    of   assLunin^;  possessiono 

REX  V  WALSH,    p,    505,        Indictment   for  stealing  a  leather 
bac  containing  parcels,    the  property    of  the    gviard  on  the  mail. 
The   ba^  Y/as    placed   in  the  front    boot   arid   the    deft,,    took  hold 
of  the   upper  end   arid  lifted   it    from  the    bottora  of   the   boot,    bfe 
was   unable   to    get  at    completely   out    before   he  was    internapted 
arii  had  to   drop   it.      HELD,    there  was   a   compl-ete   asportation 
of  the    bar    arid    so    deft,    is    CTuilty    of  larceny, 

50  No   Y,    518,      A  thief  put  his   harid   into  a  pocket   and 
gi'abbed  a   coin  but  viras    cau£>it    before  he    su-cceeded   in  getting 
it   out    of   the    pocket   arid  so  h^ad  to   drop    it,     H£LD,    the  aspor- 
tation was   complete   arid  deft,    was    guilty   of  larceny. 
The    question   in   these   cases    is  whether  the    deft,  ^as   possess- 
ion at    any  moment   arid  the  length   of   tiiue   the    control  lasts    is 
of   no    ir,iportance    if    there    is    an   instant  v/hen  possession  is 
assiunedo      So  v:'henever  a  person,    as    a  step    toward  carrying  a 
thing  away,    raises    it  from  -its   position   into  his  harids,    there 
is  a   sufficient  asportation.      Suppose    an  overcoat    is  hanging 
on  a  dummy   outside    a   shop  arid   is   fastened  to   the    shop  by  a 
chain  to   the   ana.      Deft,    takes-  the    overcoat    arid   starts   away, 
but    is    brougit  up  by    the    chain.      There   is  no  larceny  for  there 
is  riot    a   canplete   dorniriion  in  fact   for  the    tLme  being  as   the 
o;Tri£  r  has    at-  every  moment   a  direct    conrjfiction  arid   control   of 
the    overcoat, 

REGINA  V  V/}IIT£,    p,    50G .        Deft,    contracted  to  be   supplied 
with  gas    to  be  paid  for  by  meter.      He    inserted  a  pipe   into 
the    entrance  arid  exit  pipes   arid  thereby   secured  gas  without 
havirig    it   pass    througli   the 'meter.      HELD,    althoufji   the   gas   was 
voluntarily   supplied   to  a  vessel  v/hidi   belonged   to  the  defto, 
yet   the    gas    remairied  in  the  possession  of  the    company  until 
it  passed  throixgia   the   meter,   and   the   deft,  having  taken   it  be^ 
fore  that   time,    thei'e  was   a  sufficient  asportation  for  lar- 

95 


/^,- 


i^ 


cerr/o 

Deft.,   did  not  persorially   toudi   the   gas   but  he   exercised 
dominion  over   it,    as    it   flo'^ed  of  its  o.m  fuotion  to   the.  placa 
prepared  for   it   by  him;    but   this   was    a  sufficient   asportation* 
Chancing,   the    face    of  the   meter  \you2d   rot    be  /.ai-'ceny   as   the 
cocipany   consents    to-  the  £,as    goir^:,   throu^Ji   the  meter  to   the   oc« 
cupier  of   the   hoi-ise  o 

GOmiOITJiTEALTH   v  BARRY,   p',    508 o        Deft,   under  a  pretext 
went    into    tlie  bac£a£,e   room  of  a   railroad  company  and  charced- 
the    check   from  his   valise    to    the    trunk    in  question,   whidi  vas 
thus   shipped  to  No   Yo   arid  there   claimed  by  deft'so    eorifiederate 
and  rifled  of   its   contents,     H£LD,    the   real  question  is  v/hath- 
er    the   deft,   feloniously   set    in  motion  arid  innocent   agency  ,by' 
which   the   ti'urik  was    to   be    removed  fro;.»  the  possession  of  the: 
reel  owner,    and  vfriether   sncli  pxirpose  v/as   actually  accomplish- 
ed.     If   the    scheme  had  beeri  detected  before   the    tin.uik  had  been 
started   ,    it  would  have   beeri   only   an   attei;ipt    at   larceny;    but- 
as   soon  as    the   trurik  as    put   ori  tlie   cars  with   the'  check   in  - 
deft'so   possession,    the   asportation  was    complete o 

3eale   thir.ks   tl-.e   caoe    is  wrong.      The   railroad   company  had 
this   trunk   all   the   tiiue    arid  they  i.iust  have  liad  possession 
while    they  ^ve-re    carrying;    it    or  they  would  not   be   responsible 
for   its  loss    «     The    lov/er  coiirt  held  there  was    a  temporary 
possession  by  the    deft,   vfiien  the   check  was    put    on,   but  Beale 
thiriks    t".  iw    is    not    tnie,    althoiirj-i    there  migjit   have  been  lar- 
ceny  of  the   daeck   if  thei'e  ha.d   been  an    interit    to   steal   the    « 
check;    so  no  domiriion  was    exercised  over   the   tinink  by   the     ' 
deft,   until   it  vras    takeri    away   fi^om  the    depot    in  N,   Y,      Deft, 
was  -ari  accessory  before    tl-^e    fact    in  Mass,    and  a   principal   in' 
N,   Y,   as   he    set    in-motiori   the   force  \7liich   resulted  in  larceny. 
The  higher  court   that      dei't.   did  not  -take-  possession  by  merely 
putting,  on  a  check,    but   tlia  i;   the   R,   R,  -Co,    took   possessiori  for 
a  new  person  wheri  the    diecjk   was    chariged,     'ThiS'  is   not   good 
reasoniri£  because   the  position  of  the    R,   Ro    Co,   was   not    altei^ 
ed  and    its   possession  coritiriued  uribroken;    so    if  there  was   no    < 
divesting  arid   revesting   pf  possession,    there   could  be  no  new 
takirig   of  possession, 

EDLIoriDS  v  STATL,   p,    511,        Deft,    by   the  use    of  coi-n  en- 
ticed a  liog  about   20  yBsds   away  from   its   pen  -arii   then  s-truck    ' 
it  with   an    axe;    but    th^Q  hog  squealed  arid   deft,    ran  away, 
H-ELD,    the  dominion  of  .tlie    trespasser  must   be    complete   before 
larceny   is    committed  ap-id  here   the   deft,    rari   ai/ay  befors  he   had 
tlie   animal   urider  his   control, 

71  Ala,   14,      Deft,    shot   the   animal  and  kneeiad  down  be-    . 
Bide    it  and  took  hold   pf   it   to   cut    its  throat,   but  was    thsn  ' 

96 


intermiptedo      There  was    larceny  as   defto   had  taken  hold  of   the 
animal  and  assumed  possessiono  '     - 

12  Texo   Appo    207 o        A  steer  was    running  in  a  field   and   daft, 
pointed   it    out  and  sold   it    to  X  but   X  did  not   take    it   av/ay>. 
There  was   r^o  larceny   as   neither  the    purcliaser  no*  the  defto 
took   possess  ions   t)ut   if  X-had   taken  possession  and  carvied  it 
av/ay  thei^  would  have   been  larceny  by  the   defto,    as  he   used  an 
irinocent   agent  „ 

THOMPSON  V   STATE,    Po    513o'       X  held   out  his  harid  with  sil- 
ver dollars    in   it   arjd.  the   deft,    struck    his  hand  arid  kriocke^d 
the  money    out,      but   did  not   assume   possessionu      HELD,    to   con- 
stitute  larceny    ihere  must    be    a  felonious   taking  arid  carrying 
away  of  personal  property^,   and  deft-^    is   not   guilty    if  he  did 
not    get    the   money  uMor  Lis    controle      It    is  not    enoufji'  that    tia 
money  was    knocked  out   of-  the    ovmer's  h^ands    if  the   deft,   never-- 
secured   possession   of    it  ^ 

Mere  depriving  the  other  of  hJ.s  property  was  not  assuming 
possession  or  larceny  of  it,  because  for  larceny  theirs  must  be 
soiiTQ    dominion  exercised  ovei-  the    article  by   the    defto 

SUTvUvlARYo      If   at    any  moment    the    thief  has    complete   con- 
trol of  the    article   tliere    is  possession,    but   this  must   be   dia- 
tinguished  from  ability   to   keep  possession  -  Rex  v  i7alsh« 
Although  possession   is  possible  v/ithout  movirig   an   article,      ' 
th-fire   must    be   a   takirig   of  possession  constituting  a   trespasw. 
Taking  possession  must    be  distinguished  from  acts   preparatory 
to    it;    for   instance,    piit-ting  a  hand   irtto  a  pm-^e    is  not  lai-- 
ceny   if  no  coin   is   taken^      One  may   get    control  without   1iie  use 
of  the   ha  rids,    as    by   natural  forces    -  Regina  V  V/hite,      But    if  - 
■every  part    of  the  thing  is  moved  fran    tlie    space  viiidi    that 
part  -occupied  there    is   a   sufficient   asportation  -  Regina  v 
Walsh,      Iri  Coianonwealth  v  Thompson,    and   in  Edmunds   v   State 
there  was    no  act    of  dominion  arid  so  no   possession  or  asporta- 
tion o 

(b  )  Distinction  betv/een  possession  arid  custody. 

This   topic    considers   the    cases  where   one  has   the   pro- 
perty   in  his  hands    but  has    rjo    t    the    legal  possession   of  it. 
So   tliese    are    cases  where    the    property   is    in   the  harids    of  A 
but    is    actually   in   the   legal  possession  of  B;    tlie   position  of 
servant  wiH   not    be    considered  under  this   topic  as   they  hold 
an   anoraolous  posit  ion, 

AJJONo,   p,    514 »        Deft.,  was   a   guest    at    a  house    arid  aross 
early   and  took    tlie  bedclothes   out    into  the  hall  vri.th   intent    to 
steal   them,   ar^i  while  he  mas    out    in  the   stable   securing  his    ' 
horse,  he  -was    apprehended,     HELD,   deft,  was   guilty  of  larceny, 

97 


Soinethin£,   is    to  be    said   in  favor   of"   Sta\irirord's   viev   in 
the  note    on  pa£,e    Sl'l-,    ,;hich   is,    that   wherevex*  there    is   a   chat-* 
tel   contained  in  another  cl-iattel  or  realty,   as  lone  3-s   the 
owner  has  possession  of  the   aortrouriding  chattel,   he  has  poss- 
ession of  the   thing    inside;    but    the   law  has    not   ta]fen  tl;at 
view   of  possession.     However  the   la\7  has   gone   so  far  as   to  say 
that   when  the   thinr,   is    still  attached   to   the   owrier  or  to  his 
property,    as   ari   overcoat   o-n  a  duuuuy   chained   to  a    ^lop,    the 
ov/nai'  still  has  possessiono     But   there   are  no  traces  of  Stan** 
ford's   view    in  the  law    at   present.      Larceny   is  not   for  the  pro 
tection  of  property     at   all   at    Conraon  Lav;,   but   fof  the    pro- 
tection of  possession  orily,   as    it    is  a?;airfst  the  peace  of  the 
state  for  possession  to  be    interfered  with.     Modern  statutes 
r£Lve   gone   so   far   as    to   take   an   interest    in  property,   but    it 
was  not    so    at   oora:aon  Law, 

AITON,,   p,    515,        X  delivered  silk  to  workmen   in  ]-.i'S  house 
t..   use    in   bhe   v;ork   there,    and   they   took   soiae   of  it   awayo 
H£LD;    it  was  larceny,      TLe    entire   property  and  possession  re~ 
mairied  in  the   owner  -as   the   delivery   to   tl^e   v/orteien  was  only 
for  use    in  the  house  o 

The   workmen  were   goinc  to  be  'employed  on  the  premises, 
a,rd   so   they  did  not    get  possession,     A  guest   does  not  have 
possession  of  the    cup  he    is  dririk  ing  out   of  at   the    table   or  of 
the    chair  he    is   sit'.ing  on,    as   the    owrjer  must   look  out  for 
tl-aem  and  not    the    guest.      If   one  has   possession  of  ari  article 
he    is    responsible    for    it   arid  must    take    care    of   it/,    as  possess- 
ion  involves  both  legal  liability  and  legal  right, 

REX  V  CHISSERS,  p,  '515 p  Deft,  asked  X,  a  shop-keeper, 
to  show  hiiii  sorae  cravat-s,  X  let  him  take  soriie  into  his  hartiis 
to  exaiiiine  aril  tlie  deft,  ran  off  witii  them,  after  he  l-.ad  of- 
fered less  than  •tl-.e  price,  HELD,  it  was  larceny.  The  goods 
were  not  out  of  iyhe-  possession  of  X  althougii  th£y  were  deli- 
vered to  the  defto,  and  uritil  the  property  was  altered  by  tl^ 
coiiipietion  of  the    contract,    the   possession  of  X  continues. 

The    cravats  were  not    in  the   possession  of  the   deft,  urit  il 
he   rari   3i;;ay  with   them.      In  all   of   these    cases   there   is  a   suf- 
ficient  act    of  dominion  by   the   deft,   but   the    intent    is  absents, 
arid  both   elements   are  necessary  for  possession  to  pass.      In     - 
order  for  possession  to  be   acquired  the   article  must   be    taken 
for-  the    independent  -purpose   of   tlie   one  who   takes   it;    but   in 
these   cases   the  deft,    intended  to  hold  UTider   the   imi.iediate 
direction  of  the   owrjer,    and  he   acted  uriier  the   eye    of   the-  own- 
er arid  did  not    intend  to   use    it    independerttly  at  any   time,      •  - 
So   it  was  only   when  he   deteniuned  to  use    the    articl-e  for  his 
own  pui'pose    tJriat   his   custody   turned  ihto  possession, 

93 


•  lOiee 


■l:iOr> 


••tt       •*  e:\f 


X.   Jom: 


in  6i 


.m 


TlEGlilA  V  SLOWLY,   p.    51G.        The   dafts.   agreed  to  buy 
oniofts   of  ti^e   p:»'osecutor  at   a   certain  price   in  ready  nioney  to 
be  paid  wheii  the   onions  were  uriloaded;    tL\&  onions  vecQ  virJ.oa— 
ded  by  the  parties  to£,ether,    and  the   defts,    then  cade   out  a    • 
receipt  and  refused  to   either  ^iire  bacl?    the   onions   or  pay    the 
price,     HELD,    this  v;as    intended  to  be   a   cash   sale  and  in  such 
cases   the   transaction   is  not    coinplete  until  both  the  payment' 
of  th.e  Cioney  and  the    delivery  of  the   article  have   taken  place. 
Therefore    the   defts,  were   £;uilty  of  larceny  of  the  uriione  as 
in  sxi<£v  sales   the   possession  is   not    chariged  until  t?^e  money 
is  paid, 

,    The   onions  were   lying  on  tl*e   ground  between  the  two  par- 
ties,   but    the  possession  did  not   pass,   for  the  owrjg  r  did  not 
intend  to    give   possession  till  he   got   the  money.      If   the    owner 
voluTitaeily   gave  up     possession,   althougri    throu^^   fraud,   thai^ 
coiild  be   no   larceny;    so   the   statenie/it   on  page    518   is  not  cor- 
rect, 

CW.Ii.IomVEALT'h   v  O'KALLEY,    p.    518.        Indictment   for  embez- 
zlement.     Deft,  was    allov/ed  to   coiirit    certain  money   in  the  pre^ 
sence    of  the    owie  r  ard  to    take   frou.   it    orxe   dollar,    but  the 
deft,   detained  the  whole.      r'£LJ,    the   deft-,   did  not  have  poss- 
ession here,    for   if  aji   owr£  r  puts  his    property   into  the  h^ar^ds 
of   ariothe  r  to  do  sol£    act   v/'ith    it  dn  his  presence,  he  do^s 
not   pai't  with   the  possession  of  it.     Therefore,    the    deft,  not 
having  possession,   the    offence  was   larceny  and  not   embezzle- 
laent* 

The  offence  was    larceny  although  the  deft,  had   the  money 
in  his  harid  when  he    ran  off  with   it,   for  thifi.  possession  was 
in  the   owTiC  r  who  was  present. 

HILDEBRAHD  v  PEOPLE,    p,    519.        X  handed  the  deft.,   a  bar- 
tender,    a  fifty  dollar  bill  for  the  purpose    of  taking  t&n 
cents   out   of   it  -iii  pajaaent   foi'  a  glass    of  soda;    the  deft,   de- 
tained the   whole,      !T£LD,    tl-:e  possession  had  not  passed  to   tha 
deft,    for  it   was    yet   an  incomplete   transaction,    to  be  consum- 
mated  in  the   presence    of  arid  urider  the   personal    control  of  X^ 
ard.  there  was    to    trust  nor  corifidence   reposed  in  the  deft,  nor 
any  intended  to  be.     Therefore  there  was    larceny, 

Su  pose   tiie   bartender  witli   the   owner's   consent,  had  gone 
out   into   the   street    to  get   the   bill   cliariged  and  then  had  de- 
cided to  keep  it.      That  would  not  be  larceny,  because    the   in- 
tent  of  the   oiVT£r  to  let   the  deft,    take   tlie   bill  out   in  the 
street,  mi&rQ  the   owner  could  not   per  so  really  look   out'  for   it, 
is    inconsistent  with  ari  intent  not  to  pass   possession.      How- 
ever,  this  woiild  be   the    statutory  crime   of  embezzlement   as 

99 


as   the  defto  v/ould  havo   the  lawful  possession  and  woul,d  t-,uaply 
be  doiriE,  soraethinf;.  else   with   the  property  thar^  he    agreed  to 
do« 

COMMONWEALTH  v  LANHOIT,   p.    521  o        The   defto  was    employed    ^ 
by  X  to  ascertain  the   prioe    of  piece   of  land  and  he   reported 
t6  X  that   the   price  '.ras       '       v^200'a  more  than  it   really  was; 
of  the   atiioiwit   to  be  paid  -the   deft«  was   to   receive  OlOo   f  or 
services o     X  gave  to  deft,    the   amount   stated  arii   the  dfift© 
paid  over  only-  the   real  price,   keeping   the  difference,,-   H^,D, 
it  was  2areenyo      Defto  was    authorized  to  ta^e    %\^   raortey  by  Z- 
for  the   purpose    of  transferring  ell  but  .^10 o   of  the   identical 
bill  to   tlie   vendee,   and  the  defto  was  no  i^iore   than  a   servant 
of  X,   UTider  his    immediate  dii-ection  and  control.     Therefore 
the  property    and  the    possession  remained  in  X  ail  the  tins   the 
laoney  was    iri   the   deit's    control. 

Grant  irj^  that   the   morey    reaained  all  the  'tLrje   practiisally 
li/ider  the   eye   of  the   seller,    there  was    larceny.     Of  course    it 
is   a  question  for  the  jury  whether  the  ruoney  di.d  remain  aride-r 
the   owrisr's    control,   but   grarit  irig   the    facts   the  law    is   slsaro 
In  all  these    ;  revious   cases   the   possession  has  actually 
been  in  the  harid^    of   the    ovmer,   as  he   was   present    and  exerci- 
sing actual    control,      Bv.t  we   no'Jf    ooi-ie    to    cases  where    the,  poss— 
'essor   is   not   present   ard.  Lis  possession  raust   coxae  fron  some 
eoriTiention  with  the  property;    so   an   exception  must   be  foA<!ied 
to  the    principles   jAist   stated  as   to   the   relation  between  cxis— 
tody  and  possession, 

4  4 

REPORTflR'S  HOTEj   p,    52^5,        A  servant    stole   things   placsad 
in  his   charge   by  his  master,     HELD,    it  was  not  larceny  because 
he  had    charge   of  them  arid  so    could  not   take    tl-^m  vi   et   armiSo 
Thi'S   represcTits    the  view   for   quite  a   time   in   bhe   early  Common 
Law, 

REPORTER'S  NOTi:,   p,    524,        If  a   servar^t    is   entrusted  with 
driatteis    to  keep  arid   iims   off  with  them  it    is   felony £,    for  th® 
possession  of  a  servant  Jwhile    in  the  master's  house    is   the 
possession  of  the  master.     But    if  the    chattels   are  given  to 
tI-£    seinrant   to  perfoxm   soiie   duty   therewith  which  takes  him  to 
another  place,    it    is  no  felony    if  he   riiris   off  with   themj,    for 
the  master  has   voluritarily  give  up  possession  to   the   se.rvarit, 

Ti.is    is   the   logical  way   of  treating;  the   servant  ^s   poss- 
ession arid   it   prevailed  up  to    a   co;.iparat ively   recent   date;    it 
made   the    sei*vant's   possession  de-perui  on  the  same  principles 
as    the   possession  of  anyone   elsec 

REPORTER'S  NOTE,  p.  524,  HELD,  if  a  master  delivers 
goods  to  a  servant  to  sell  arid  he  sells  thou  arid  koepB  the 
money,    it    is  not  felony  vtnd&r  the    statute    of  21  Fenry  Sth,      _ 

100 


XoiJjit 


Oisi 


laaking,   it  a  felony   foi-*  servants    to   steal   or  embezzle    £oods  of 
their  master  entiuisted   to   tljim  to    keeps    for  L©  does   riot   go 
away  witi:  ^oods   delivere^l  to  hiux  by   tiie  master.      But    if  either 
the     master  or   t:.e    servant   deliver  to  another   servunt    goods 
ar»i   the  latter  eoes  away  vith  ti^am,    it    i'S   feliny  under  the 
statute,   for   it   is   the  master's   delivery « 

Tiiis    is   a   statutory   criUiS   arid  not   larcerc   as    tJie   common 
Law  had  not   yet   developed   ihis   disti-nction,    but   it    is   the.   same 
as   the   tnoderri    Cocnon  Lav.'   distinction,      Tl-.ere    is  no  real  dif—    • 
ferajice    in  principle   between   the    servant   arid  ariyone  else   as    to 
posse ssiori  arsd  the   distiriction  raade    by  moderri  la^^r   ts  purely 
arbitrary;    for  there    is    rio   reasori  why    tlie  i.iaster  should  have;' 
possess  iori  \!l-j.eii    tl'.e    goods    £0    fro.a  under  Lis  personal    control. 
On   tl:e  former  pririciples   v/e  Lave  discussed   it   ^7ouid  be  held 
tliat  Viheri    tlie    servarit    uses   £00ds    on   the  uiaster's    promises,    the 
master   is    iri  possession;    but  \fi\eri.  they-  are    j^ivcri   to  him   to 
take   v^ay  ,   the   sex-n/'arit    is    in  possession.      This  lor^icaT-  view 
prevails  dov/ri  to   quite    recerit   times,    but    in  1793,    by  Hex  v    ^ 
Laverider,   p,    332,    it  was    firially   chari^ed;    arid   at   pressnt   the 
extremely  artificial  distiriction  exists   that   goods    given  to    a 
seinrant   by   the  master,   no  matter  \ihere   the    parties  are,   are   in 
the  master's   possession;    but    goods    given   to    a   servarit    by 
a  third  person,   no  uiatter  where  the    parties   are,    are   in  liie 
servant's   possession,  "^ 

EAZ£L£y'S   CASE,    p.    525 o        Defto   was  a   teller   in  the  bank 
of   the   prosecutor,      I'e    received  from  X,    a   depositor,    cei*tain 
money,    ar^l  after   entoririg   t_e    auiourit   of   tr.e   deposit    in  X's 
book,    placed   the   note   iri  a  drawer  useu   for   t!-:at   purpose,    ex- 
cept   those    in  question  v/hidi  he   put    irito  ..is   pocket.      K£LD, 
it  -ffas   not    larceny   beoause    the    note  v;as    delivered   into  the: 
possessiori  of  the  defto    ai-id  was    never   transferred   to  the   legal 
possession  of    tine   prosecutor, 

Iri   tLi  is    case    the    property   'ub.s    giveri    to    tlie    sei'varit    on 
the  master's      remises   by  -a   third  party,    and  possession  in  that 
event    goes  to    the    servaiit.      This   is   law   today  but   it    is  uttej>- 
ly   indeferisibie    on  principle;    for  just   as    on  principle,    all 
things   given  by   the   master  to    tLe    servaiit   to   take  away   should 
be    in  the  possessiori  of  the    servant,    so    all  ti:iings   given  by 
any   other  persoji  to    the    servarit   ori  tl~e  master's   premises   shoxil 
be   in   the  master's   possessiori^   be-cause   they   are    then  practi~ 
cally  under  his   iri^Tisdiate   control « 

^X  V  BASS,    p.    551,        The   def  t « ,   a   sei'vant,   was    given  a 
package    of  goods   by-  his  master  for  delivery   to  a   cuistomer  at 
a  particular     place.      On  his-  way  the   deft,   took   the   goods    out 
of   the   pacJ^age   arid  soli   tliem*     HELD,    the  possessiori  of  the 

101  - 


I 


£.oods   remained   in  the  Liastei'  until  the   time   of  the  conversion 
and  so   there  was   larceiiV, 

By  ari   exaiiiination  of  this  arid  the   nex':  2   eases   it   is 
seen   that    it  was   not  la-itil  tlae   end   of    tl^e    last    century  that 
it  was   firally  detenuiried  that  viheri  £,oods    are   £,iven  to    a  ser- 
vant   by   ttie  master  to  carry  av/ay,    they  are   in  the  maste-r^s     '• 
possession;    it  was    firallj'    settled  by  Rex  v  Lavender,   p,    532, 

HEX  V  WATSON,   p,   532,        Deft,  was   sent    to  buy   sone  li-       ' 
censes   for  Lis  master,   \iio  delivered  i-o  hfcm  money   for  th^t 
pui*pose;    du  f t .   ran  away  v/ith   ti:e  uiorjey,     H£LD,   this   is   not 
felony   at   Ccaon  Lav;    as   there  was    no  fi'^udulant   obtaining  of 
possession  wit:,   inteni    to   steal.      Tiiis    is   also   not  a   case   of 
mor^y    i^iveti  by   the  i^ias ier  to  the    servant   to  keep,    coming  uriderr 
the    statute  of  ]-'enry  Sth,  for    the    expression   "to  iieep"   there 
used  asans  to  keep  arid  retuiTi   to    ^^:.g  master. 

This   case    shows   that  up  to   this  time    it  was   i-iot   finally 
deteniiinc-d  thai   £,o  ods    £iven  to    a  servant   by   the  master   to   ear*- 
ry  aivay  are    in   tl'ie   master's   possession, 

TlcX  V  LAV£iIDER,   p.    532,        Deft,,   a   servant,   was    r,iven 
mor£y  bj  his  master  to  carrv   to   a  certain  house,    but  he   bougli 
a  v.'atch  with  part   and  kept    the   rest,     H£LD,    it  was   larceny  at 
Cccmon   Lav7  , 

This   case   overrules  Rex  v  V/atson  and  finally  decides   that 
the   possession  of   the  taster  contiriues  v/hen  he   £,ives   [pcxXs    to 
a   sei'vant   to   carry   ai/ay,      Tliis  l:ias   aontinued  to  be  law    to    the 
present    day, 

<  s 

RXIGIIIA  V  TOLLETT  &  TAYLOR,   p.    533,        Taylor  made   arrange- 
ments with    the  wife   of  the    prosecutor   to    elope   arui  it   was 
ari'ari£,ed  that  she    should   put  money  belonging,  to  he  r  husband 
into  boxes    to  be    taken  away  witl-*   them,      Taylor  went    to    the 
house    and  the  -boxes   v/ere   delivered  to  him  by    the   wife,     HELD, 
it  was   larceny.     At   lav/    there    is  such   a  unity  between  hi:sbarid 
and  wife    that    it    is   not    larceny  when   fpods    are  delivered  to  ejn 
indiffei'ent  person  by   the   wife;    but  wherx   such  person   is  an 
adulterer   it    is  larceny. 

If  a  wife   gives  property   of  I^r  husbarid  to  a   stinanger   it 
it   is  not   larceny,  whatever  the    int  erit   of   tlue    sti-anger,    be- 
caase,   althou£;I-:   at    Cocmon  Law  she   has   not    possession,    but    only 
custody  of  even  the-  dotnes   slie   wears,    she  l^ias  the    power  to 
pass  the  possession.     But  there   is  this   purely  arbitrary   ex- 
ception that  when  t:.e  v/ife  £;ives    goods   to  ai-i   adulterer  and  ha 
carries   tliem  a.7ay   it   is  larceny;    there   is   ro   attempt   to  justify 

102. 


^bOO-^ 


'5  5 ':j 


this    rixle   on  any   theory   of  posseBsionj    but    it    is   founded  on  a 
^eneva.1  desire    to  punish  adultery,      Ti:e  v/ife    could  noi  be  held 
as   principal   in  the   crime    as    she   could  riever  have  possession 
but    if   she   took   part    in  a  larceny  by   saxieone   else    sl^^a   couM 
probably  be  held  as  ari   acjeessoryo      Ari  adulterer,    in  this   class 
of   cases,  means   anyone  who  has    coixjuiitted  adultery  v/ith  her  or 
intends   to, 

REGINA  Y  NOWAL,   p,    535,        Deft,   was    riven  dock  v/arrants 
by  his  niaster  for   cer  ain  deer  }-orns,    and  after  receiving,  arid 
puttinr   th&Ci  into   a  park  belon£;in[^   to    tV. e  i..aster,   he   stole 
soi.fi    of   them.      HELD,    tl  e   g^oods    "vvere    constructively    in   the 
possession  of  the  iriaster  as   so-on  as    they   were  placed  in  tiie 
cart,    arid  so   there  was    larceny o 

It  must   be   assumed  the    cart  was    in  the  master's   possess- 
ion in   this   case;    and   if   so   arid   the   se  rvarit    interjded   to   pass  • 
posse'ssion  •wLe.ri  he    pvtt    the    £,oods    in  the   cart,    t:.e    case    is 
clear, 

REGIMA  V  RiSED,   p,    536,        X  sent   tl.e   deft,,   hi-s   ee rvarit,     " 
with  his   (s  rt    for   coal,    and    on  tlie    return    the    deft,    took   some 
of   the    cca3,   froi.-.  the    cai't  ^      The    deft,   hiUd   be«n  directed  to 
briri£,    the   load  to    tl.e   house    of   X,   his  uBster.     HELD,    the   ex- 
elusive   possessiari    of    the    servant    was   ended  v/hen  the    oo'al  was 
deposited   in  the   naster's    cart,    ard  thereafter  the    def^,  bad 
only   the    cjustody   or   cl-aree   of    it.,    arjxi    so  thei-^    was   larceny, 

•  COi.UJ.ONVffiALTH  v   RYAII,   p,    543.        Deft,   was    a    sei-vant    of  X. 
Deft-,   put    some  money  whid.  had   been  paid  for   goods    cf  X  which 
Deft  a   had    sold   into    a  money  drawer  belonjrinc  to  X  v/hich  was 
open,    and  in  a  few  maiients    took   the   same   ut   ag^ain,     HELD,    tt^e 
deft,    intended  to  appropriate  tliQ-  money  before  putting,  it   into 
the    di'av/er,   vriiich  v;as    dor^    for  his   ow-n  convenience,   arii   so    it 
never  passed   into    the   possession  of  X«        Therefore   the  offence 
was   embezzlement    aiid  not   larceny. 

Suppose    tiie  nas-ter   seriis    his   servant    to   X  with   a   cart   to 
get   a  dozen  articles«      X  v/is-.es   to  keep   one   of   the    articles 
arid  puts   eleven   in    'i^e   cart    openly   and  conceals   one   in  tlie 
cart,    but  walks   alor/^  beside    it    interidinr,   to  take   it    out  when 
he   readies   his  i^ouseo      Tr^at    one  -jould  riot    £0    out   of  the  poss- 
ession of  X  because,    althourl.  physically   in   the   cart,    X  does  • 
not   relinquish  possession  of   it,-  as  he   did  not   intend  to  nor- 
did  he   put    it    out    of  his    control.      So   the   true   distinction  is 
between  articles   put   in   tl.e   vehicle   \Tith    'che    intention  to   pass 
the    possession  over    arid  goods    put    ti::ere   for  his    aan   purpose; 
arid  this   distinctiori  is    equally   cooi   ^n  Reed's  arid  Ryan's/i 
cases,   vrt'iere   a   servant    is    concei*ned,    as    in  tlie   case    of  a   third 

105 


30 


<?     -r 


persorio      It    is   a  differ.„noe   between  putting  l-OO^s    in  a   cart 
in  a  nmster's   receptacle  with   tl.e    intent    to  pass   possession 
ard.   putting,   theui  in  for   the    servant's    own  purposes    arid  not    in- 
tending   to    pass   possession,      A  servant,   receiving  ^oods   froa  a- 
third  person  laay  have    independent   possession  or  he   :..ay  have 
possession  for  his  master;    for   it    is   possible   for   VL\e    -anird 
party  to  pxit    tl:e   j^oods    directly   in  tl.e   possession  of  the   cias- 
ter  by  putting  them   in  a  place   he   lias    provided  for   theu;    so    it 
is  when   a  lettex-   is   dropped  in  a  letter  box  or  where    the  mas- 
ter seriis    a   cart  and  the  tMrd  person  puts    the    goods   directly 
irtto    vhe    vehicle.      If    'he   third   person  gives    them  to    Vr-.e    sor« 
varit    aiii  the   sei'vi'.nt   puts  then   directly   inio    the    cart    intend- 
ing   to  pass    bhe  possession   to    t^e  luaster,    as    in  Regir^a   v  Reed, 
the   master   gets   possession  tae    same    as    if   a   third  person  had  - 
dorje    tiie    act   instead  of  a   servant,    althougl-i   for  a  t  irue    the 
servarA.   rray   have  had   indeperjdent    possession.      But    if    the    ser— 
varit   puts   theLi   jjl    tl'^e  cjaster's    receptacle   not.    in   the    course     • 
of   business   but   as    a  ivieaiis   of   transit   for  his    own  purposes,    tla 
master  does   not    get   possession   any  raore  than   if  ^a  third  party 
had  acted    in   the  s  ax^e  v/ay    -  Coi-monweaith  v  Rl'.ine,      There  fbre 
both   Regina   v  Reed  ard    Coaiionwealth   v  Ryan  are   rir^itly  decide.d 
on  logical  principles,    a/id  there    is    no  differerice    betv/eeri  tbe 
posit'ion  of    a   sei^-varit   and  tliat    of  a^;^^   other   party    in   tl.esfi 
casesc 

SUJ.HJARYt        The    control   in  possession   is   not   a  quest.ion 
of  manual  touidiing,    but    it    is   a   quest  ion  as    to   ^ilo  has    the 
practical  direction  of    the  article    -  Rex   v  Chissers,   Hilde- 
brand  v  People,      In   case   of  a   cash    trade    the    possession  of 
the.    gp'Ods   does  riot   pass    till    tiie   raoney    is   paid   -  Regina  v 
SloViTly,      But   possession  rr^ay   be    given  up  al.thou{^-:    the   intention 
is   contrary,  v;hen   tl;e    control   is   given  up. 

It    is    settled  lavr    that   a   seirvant   never  gets   possession 
of   goods   when   they  are    delivered  to  hini  by  the  uaster,   but 
th*at   he   does    get  possession  v/hen   the    third  pei*son  gives  hia 
goods   for   the  Liaster   -  Eazeiey's   Case,   Rex  v  Laverider.      Tlie 
law  would  probably  have  \/orJ^ed   itself  out   logically  but  Laven- 
der's  case    ir/  1795,    follo'^jed  by  Eazeiey's    case   in  1799,    con- 
fused the    la'.7.      The    statute   of  Henry   Sth  did  not   apply   to  la^ 
ceny  but  made    it   a   statutory -felony  vr.ert  goods  were   given  by 
a  roaster   to    a  servant    ^.o  keep,      A  vrife   or  ci.  ild  does   nob  liave 
independent   possession,    but    can  pass    possession,    except    in  the 
case    of   an   adulterer,  which    is    ari  exception  uriless   the    fact 
that    she    is    about   to    elope  dest-roys  her  riy:its  as    a  wife   - 
Rggina  .  '  '  '  v  Toilet t   arid  Taylor, 

The  i.iei-e   fact    that   soi»ething   is    placed  in  a  particular    ' 
place   does   not    vLeieri.iine    the   possession  -  Coa^niOnwea-th  v  Ryan, 
But  when   a   seinrarit  puts   an  article   of    tl~i.e  uiaster's    into   a 
receptacle   belonging  to    the  liaster,    he  may    intend  to  give  up 

104 


the   aJi.tual   possessiori,    and  so  the  liiaster  has  actual   ariJ.  not 
constx'uctive   possession  -  Retina  v  Reed,      The    Laportant   rule 
is,    tha*.   to   f;,ive  up   possession   in  cages   like   thia   there  must 
be   ari    intent   to  pass    the  possession  to    the  inaster, 

0 

(c)  Possession  in  case   of  firuiin£,, 

R£X  V  MUCKLOW,    p,    547,        A  letter  contairiin£,  a  dra^ft  iras 
delivei-ed  to  the  deft's.    father  by  xnistake   and   the  deft/  ap- 
propriated-the  draft   to  his   ov/n  use,   ijnowins;   it  to  be  for  ano^ 
ther  person,      F£LD,    it  was   not   larceny  because    it   did  not   ap-- 
pear    il.at   tlie   deft,  had  the   aniaius   fuxmridi  v/ha-i  he   first    re- 
ceived   il.e   let:er, 

N 

The  possession  of  the  bariiinote  went  alone,  with  the  poss- 
ession of  the  letter  because  the  person  who  takes  a  letter 
necessarily  intends  to  take  possession  of  ihe  ordinary  things 
inside  of  it.  A  bill  of  excl^an£,e  or  banknote  was  subject  to 
larceny  ''CxQ-^q  because  of  a  statute  liiaking,  certain  kirids  of  ob— 
lif^ations  liable  to  be  stolen.  These  statutes  have  been  much 
extended  at  present  arid  include  mariy  kinds  of  oblij^ation,  but 
they    started  v/ith  bills    of   exAhar^e   and  bariknotes. 

It    is  not   necessary  literally  to  prove   the   alleviation  in 
an  iridictuient    for  larceny  as    to   the  property   in  the    goods    for 
it    is    not   essential  to    pi'ove   title   as    that    is   imtjaterial.      It 
is  necessary,  ho./ever,    to    prove   tliat   trje   person  described  as 
tha   aanei'  has   possession   or   soi.»e   ri£;-it   to    it,    but  this   is    only 
as   a  fair  i.iatter  of  description. 

M£RRY -v   GP.EilN,    p.    548.        At   an  auction  sale  X  purchased 
a  secretary,      Sometiire    aftei-wards  he   discovered  a  secret  <iraw- 
er  thei-ein   in  v/hich   there  was   a  purse,  which  he   coriverted. 
The  -eviderice   was   conflicting  as    to  whether  ct    the   sale   the 
deft,   bougi-.t   the   secretary   and   its    contents,     HELD,    if  the'  d 
daft,  ^bought    the    contents   of   the    desk  there  was  no  ..arceriy. 
But    if  not,    thei-e   was  no  delivery  of   the   possession  of   tlie 
purse  although  there  was   of   the    furniture,   and  djeft.    is  guilty 
of  larceny. 

The  principle   point    in  this  case    is   the  question  of  pos^ 
ess  ion.      Before  X  fourid  the  money   ..nd  while    it  v^ras   in  tie    se-- 
eret   drawer,    it  was    in  tlie   consti-uct  ive  possession  of  the   one 
who   last  had   actual  possession.      X  did  not    get  possession  of 
this  money  by  getti/.g  possession  of  the    desk,   unless  he    bought 
th^   desk   with   its   contents,   as    ot.'ierwise   he  had  no   intent   in 
regard  to   it   and  :-^d  no  reason  to    suppose   anyVr.ing  not  be- 
longing to    the   furniture  was    contairied  therein.     Of   coui'se    as 
soon  as  he    intends    to    take   possession  of  wi^aiever  is   contained 
m  tlie   desJr,  whether  he  knows   its  nature  oi-  not,  he  gets   the 

105 


f^ 


OB    Si 


>0 


::>o»t    c 


le£,al  ijossession.      In  whose   possess  ior^   is   axiy  los  ".  property 
before    it    is   foiUiJ.?      I:  r.iUst   be    in   il.e   possession  of   someone 
or   tliere      ould  be   no  larceny   arid  p^'oi^erty    onca   in  a  person's 
possession  coritinues    so    till    sOi-.eone    else    takes   possession; 
persortal  property  i.^ust-  ar.v;a:s   be    in    i-l^e   possession  of  someone 
lAj-iless    it    is   abandoned,      r'ere  ;ve  first   meet  witl.   constiuictive 
possession  as    di  st  in£,uis-.ed  froui  actual    possession,   arid  it 
arises    in  cases  ViTl.ere    tl.e    law  must    regard  sa.ieone  as   tJie  poss- 
essor*    to   f'alfilJ    t;  e   requirex.ienb    in   re^^ax'd  to  pei-sonal  pro-    • 
perty,      3o    construc*;ive  possession  is    i'..at  v/'.ia!.   is   asstuned 
iii  so.-.eoJTie  by   lav/,    and   ti.e   only    one    the   lav    cari   force   tiiis 
upon   is    tlie   last   actual  possessor;    consequently   consbi*uctive 
is   a   continuation  of  actual  possession  arid   in  lost   property 
the   possess  iori   re^iiairis    in  tl;e    loser   till   soueone   else    takes 
it. 

R£G1MA  V  THUREORII,    p.    551.        Deft,   found  a  bankriote  which 
he  picked  up  v/iih.  tl:e    iriterit    to    appropriate,    but    tliere  'jere 
no  i.arks   or   circui.iStarices   b,,    uhich   ..e    could  discover  to  \t.om 
the-   note   he  .oiir^od.      Later  he   v;as    iriforiaed  as    to  v;ho  vas    tlie 
o.;ner  and  subsequeriily    chari^^ed  the   note   arid  used  the  moriey, 
r.LLD,    neitl.er    (i.e    ori£,inal    takirt{_  rior  t'.B    subsequent   appro- 
priaiiori  ariii^io   furaridi  vras    larceriy.      'Tr.oever  takes   ^oods  which 
he  reasoriably   supposes   to  Iiave   been  lost    arid  reasoriable  be- 
lieves   t..e    owner  canriot    be   fourid,    it    is  not   iai'c^ni'   even  if 
he    takes    t.-e;n  v/ith    ari   iriteiit    to    apj^ropriate    them.      Eut   if 
there    is    reas  Ofi  to  -believe  who    u..e    owriei*   is   or  that    it  can  be 
found   it    is    larceny,      Tierefore   sirice    the    deft,    in   tl.  is   case 
acquired  a  lav/ful  possession   in  tl.e   orii.irial   takirir,,   any  sub- 
sequerit    coriversioii  arii;..o   fura/idi    is   larcerry,    althouf^i   the  real 
owner  is    theri  knowri . 

Til   this    case    the   principle-  quest  iori   is  v/hetl-^e  r  the    takirg 
of  lost    property  cart  be   larceny,      A  firtder  does   not    get   poss- 
ession by  uereli'    taking  up  ari   article    to  look    at    it,    but   if 
he    decided  to   carry    it    away  he    gets   possession,    and  he   carinot 
ca.ir.iit   larceny  after  he    takes   possession  either  for  the    owrier 
or  for  hiiiiself;    and  a  fi rider  of  goods   lias  the    rlrjr.t    to    take 
tl.au   for  the    ovvrier.      If   orie    firuis    lost    pi-o perty  and  reasonably 
believes    the   ovrrje  x'  will   rjever    coive    after   it    arid  carjriot   be 
found,  he    does   not    coini.d  t   larceny   if  he    takes    it    for  himself; 
tlie   owrier  does    not    lose  his    propert-y  however,    arid    if  he    does 
claiiii  it    the    finder  iaust    give    it  wp.      But    a  firiier   of   goods, 
where  ti-.ere    is    no   pro^f  to    ti.e    owrier,    has  the    legal  powsr    to 
use   theti   or   to    sell   th^'ii   ar^i  pass    title, 

■  ''^':-inA  V  PR£3T0N,   p.    557,        X  losi   a  marked  note   a-nd  the 
deft,   lawf-Lclly   received,   ihe    same  frotn   the    tiriler.      Deft,   af«tei* 
"ward  asceriaiiiod  to  «l-;aa   the  rtoia  belor*ged  and  coriverted  it-,    • 

106 


'«^ 


The   judt,e    cl.ai'f^ed   tliai    ix"   at    t:-.e    time    -the   deft,    Tirsii    .'esolvGd 
to   appropriate   the   note,    he   had  rea&onable  mearis  of  finding 
the    o:niQ\-'   ,   he  was   guilty   oT  larceny,      F£LD,    the   chaise   was 
erroneous.      The  taJtin;-    of  possess-ion  arid  tJ.e    animus   fai^andi 
ciust    coincide,    axid   so    if  t-.e    deft*    tooB.  possesDion  lavfally, 
any  later   intent    could  not  uiake  his  act  larceny, 

R£GINA  V  'WEST,   p.    5G1.        X  lefi  his  purse  at   the  raarlcet 
stall      of   def-t,,   who,    on   its   beiri^   pointed  out    to   her,    ap- 
propriated  it,      F£LD,    it   v;as    larceny.      There    is   a   clear    dis- 
tinction between  property  lost   arid  that   left   unds  r  circurristarr- 
ces  v/here    the    OiruQ f  would  kriow  the   place    i,vi~xer  he    left    it    arxi    • 
would  naturally   re  iuiTi   for    it. 

If  ariother  person    than   the    owie  r   of    the    shop  had  found 
the   article,  he   should  have   left    it    at  the    siiop  for  the    ovmer, 
but    if  no  owner  appeared,  ti^Q  finder   could   clahvi  it, 

REGIHA  V  ROV/fl,   p.    5G2.        Deft,   was   indioted  for  stealing 
chattels   belonging  to-  a   certain  canal   co^-^pany,      Deftc   v/as    not 
an   eruployea   of   the    Co.,   but    tool?   the    iron   in  question  from  the 
canal  while    it  was    beinj:    clearied;    tl-je    iron  had  been  lost  by 
users    of   tlie    carial.      The   deft,    contended  tiiat    the   property  was 
no/'t  correctly   described  as   that    of   tJr.e    Oo,      H£LD,    the   indict- 
ment was    correct.      The   property  of  the    Co,    in  the   iron  was    tlie 
sQiiiQ   as    -i'-at   whid-^    a  landlord  has    in  floods   left    in  ^oods      by   - 
his    £,"aests,   arJ.   sud^    posse  ssio/i   is   sufficient    to   ...aintain  an 
indictment    for   lai'ceny. 

The   carial   Co,  had   the  ri£]-:t  to  the    possession  of  anythirjg 
fouTid  on  iis  premises   by  a  trespasser,    as    axi   owner  of  larid  has 
a  vi[jit    to   every txiin£  a    trespasser  £,ains   by  the    irif ringenjent 
of  his   i*i£j:t;    but  tl:e    possession  of  the    article,   imtii  fo'ond, 
is   const  rue  t-ive-ly    in   the   owrie  r  of  th.em. 

(ISyC)   2   -  Q,   B,   44   -  A  landowner  enployed  a   se-rvant    to   clean 
out   a   porid  arid   the    servant    fourd    a   ririg    tl^rein.      The    i-i  rv5   b&- 
foi-'e    it   was    found,    was    in  the    consti-uctive   possession  of    its    > 
ov7ner,   althouf^-.  the   owxje  r  of    the    pond  r^d   a   rifj-.t    to    its  poss- 
ession as   a^airist  the    servarit;    Re^iria  v  Rowe   does  not   go  ag- 
ainst   tl';is    imle ,    foi"  the   allegatiori  as    to    the    pi-operty    of  tha 
canal  Go.    is   ortly    a  iiiatter  of   description  ard  need  not  be   teds 
nically   correct.      The    owner   of    premises  Ir^as    the    right  to  •  ^ 

possession  of  ariy  articles   found  on  his    praoaises   by  a   servarit 
in  the    course    of  hd  s  aaployaerit ,    or  by  a  trespasser;    bui   any~ 
one   \i\o   b,as   a  rigi:t    ori   the    larid   can  keep  V7hatever  he   finds,     ■ 
except  where  he    finds    it   in  tl~.e    course    of  his  employuaent   by 
the   ov/Tie  r ,  "^ 

COLliOirJ^VLT"  V  TITUS,   p,    5G3.        Deft,   found  a  wallet   of 

107 


^ 


!• 


B'b  on  a  hi,>..7ay,  Ti.e  jud-s  charged  tliit  V.ie  deft,  iviusfe  have 
ta^exi  possession  of  tl.e  pi'opei'ty  '.vii'..  intent  to  steal,  and 
that  at  ii^at  tL^iC  '::.e  iaisi  have  :.ad  reasonable  u^eans  of  ascer~ 
tainin^  v/iio  il.e  ovfl-ie  i*  ".vas  ,  or  he  was  no:  £,uilty  of  ..arceny;  ■ 
and  any  intent  to  stoa-Z.  formed  subseque/it  to  ti.e  taJcin£,  could 
not    constitute   iai'ceny*      I'ELD,    ti.e   chai're  was    correct. 

This   case    is   like   Ker^ina  v  Tl.urborn  and  is    £pod  lai;. 

'^F.GllJA  V  PIITLAYSON,    p.    5!'.5.        Deft,   was   d.'ivin;^   a  mob   of 
horses  '.i'^::eii.   it  v/as    joined   by    ;.ie   branded  horse    of  a  nei^ibor- 
iri',  ovner.      Deft,    did  no'    see    the   .^orse    at     the    tL.ie,    but   next 
morninj^,    as    .vas    custoL.iary,    courited -the  horses   and  discovei»ed 
it   a/id  theri  drove    on    the   v;hole  herd,     I-LLD,    it   was    larceriy. 
By    i;e    saiiie   act    the    deft/  -took   possession  of   tlie  horse   arid  da- 
te xiidned  to   appropriate    it. 

The  horse   was   in   the    const i-active  possession  of    t.ie   o'jvrier 
tiii   luornin^,- v..en   viefi,   decided    to  keep  :-:L.i,    for   tl.en  he   as- 
suxtsd   co-ntrol.      If  the    horse   had  strayed   out   during   the  nigr^t 
arJ.   deft,,    thir»kin£,    it  v/as   ..is   o'.7n,   I'^d   driven  hii.i  back,   he 
v/ould  have    t-aken  possession  for  he   wo-uid  have    assuraed  control 
of  the  horse.     But  vifhe n  he    siiuply  drove  alont^^    tl\.e  whole   herd, 
not   knov/in^i,  tia  t  any    outside   ariiuial  was    tuyere,   he   acquired  no 
possession,    arid   posse ssiori  v;as    first    ass-omed  wheri  ..e   directed 
liis    attention   to    that    individual  h'orse;    and    tl.is  he    did  whaj4 
he   counted  ,.is    ...ei^d   in    f..e  j.iOi'Tiin,,;^, 

RLGlIiA  V  ASr\7£LL,    p.    5GG.      Deft,   a-sked  X  for   the    loart   of 
a   shining,.      X  i^rided  to   deft,    and  deft,    received  wi^t   each 
tho'J£,..t  was   a  s.-illinf;,,    but   wl.icl^   v/as    in  fact    a   sovereign,       ' 
Later  t.£    deft,   used  t::e    soverei^^n  a^id  appropriated  tixe   whole., 
K£LD,   half  ti;e    cotxrt   held  tiat    it   -.vas    not   larceny  arid  that 
to   coristitute   larceny  a   chattel  luust    be   taken  aiC^ainst    tlie 
corisent    of   the    owrier,    and  that   tr.ei^   v;as    coriserit   iiere.      The; 
oti.e-r  l;alf  of  the    co-trt  held  that    it  was  larco'iy;    ti^t    the" 
deft,    did   rio ;.    co/eent    to    take   possession  of   the    so  vereicri- till 
he   knev    it    was    oric,    arid   tl.a  o;    a  persori  does   not   ccr.serit    to    that 
of  which  he    is  entirsly   i£,rxorarit. 

The    question  as    to  wliat    resporisibiiit  ies  possession  car- 
ries wit:,   it    is    eritiroly   a  differerit   problem  f-ra-n   tl-^t   of     '    ■ 
possessiori  arid  l^as  to-  do   with  Torts   and  riot  with   possession, 
Beale    thirdis   the    deft,   did  take  possession  wlien  he    took   the 
article  as   a  siiillin^;    the   physical   coritroi  was  the.i'e   and  he 
iriterided  to    exercise   contol   over  tiat    specific  point  which  he 
took;    so  both  the   riecesc  ry   elements    ./ere   preserit    arid  he    ao-     ' 
quired  posse  ssiori  wheri  he   took    it  i*ron-i  the  harids    of  the    giver, 
Re£,ina  v  Asl.well   is  no  authority  eifei-^r  las   as  where   the 

108 


judges   ax'e   equally   divided  there    is  no  decision  on  a  point  of* 

laiv ,   aliliou^,;-.   ti.e    senteno-e   o-f   the   lover   court   is   not    reversed, 

PiBf^ina  V  Jacobs,    12   Cox   C.    C,      This    is   an    earlier  case  thari 

Rerina  v  Ashvrjli   and    is   a;,airiSt    i-t. 

Retina  v  T-'are,    (I'J'jo)   2   Irisr.   70S,      This    is   a  late   Irish,  case 

aj^ainst  Retina  v  Ashv/ell,      A   interjdiri^   to    i^ive  -B   2   one  pound 

notes   c^ve  hi...  a   one    pouiid  note   arid  a   te/i  pound.      The   court 

hai   no  doubt    t'.iit    Jeit. ,    took  possession  of*   tlie    ore    poi^'id  note 

arid  t  -is   hoxfs  how  absurd   it   -v/ouli   be   to   Loid   that    deft,' got     < 

possessiori  -of    or^e    of    LI.e    pieccJS    of  paper  arid   not   of   bit    ot»x*ei\ 

Iri  -the   U,    S.    thex-^    are   only    2   cases   on  the   point,    one    each 

v/ay . 

8   Ore.    304    is  the   oril,     case   in    i;e    English  spe'aking  ■'.vorld 

which  holds    th.at   sucli    facts   coristitute  larceny. 

97    Ga.    430,      In   this    case  the    coui-^   held    it   v/as   rot    larceriy 

arj.  ViTortt    even  fa-rt..er   tlan  tiie    judges  v;ere   asked  to   go    in 

Regiria    v  Ash".jrell. 

Suppose    a  ivan  vrishes   to    give   a   persori  10   dollars   but.   courits 

out   riine,    t..irjkirAg  he    is    countirig    out   ten,    and.  both  parties 

ai'e  "urjder   H.e    saiue   Liistake,      It    is  p   ain  posse ssior^  passes 

of  the    i-^ii-te.      Tl.sici  does   not   possessiori  pass   Vifhen  he   counts  out 

11  dollar's    iris:ead  of  10?      If    it    orily   passes    for   the   10,    of 

which  teri   cari  it   be   said  to  pass? 

RiiGlNA  v  FL0\7r,RS,   p.    574,        Deft.,   having  been   given  a 
sealed   erivelope   coritairii/i,^  his  v;ages,    rc-tUx-r/ed  the  bag  empty 
to   ti.e   clerk   ard.   stated   the    a.iount  "jas    s.-ort.      The    clerk   gave 
hi...  back    tho   ar^ourit    of    ti-.e    a.iGr:age   ar^d  at    t..e    sarne   tlae  han- 
ded hii..  '.Vx.at   ..e    suppose-,  was   the   deit's,   bag,    but  vhich  was 
really   tl.e   bag   of   another  xro A^i.iOn  co.ntaining  uoney.      The   deft. 
received  it    innocently,    but   after'.rard  fraudulently   appropria- 
ted  the    saiTie.      HELD,    it  -i/as  rio  t   larceny  as    the   ariiiiius   f-eraridi 
did  no':    coricur  vdtlx    "i^e    takirjg    of  possessiori  of   tiie   bag. 

The   facts    in  t..is   case    caririot   be  distinguished  fro.a  :ie- 
gina  V  Ash\7ell,    arid   tl.  is    case    states  the    tiiie   doctririe.      If  • 
tlxSre    is    ariy  difficulty,    it    is  witlx    tiie   firiding   of   the   jury    on 
the    facts,    but   the    lav/    is    clear. 

S i^tnit* AT ij.'  7he  mind  of  a  persori  r.mst    operate    in  order  for  him  to- 
take  possession   of   an  article;    so    i/i  Regiria  v  Mucklow  de-ft. 
took   pessession  of    the    coriterits   of   a  letter  because    one   ordin- 
arily  intends    to   take-  v/liatever   is    contained   in  a  letter,    but    • 
iri  I.ierr-y  v   Greeri   deft,    did  riot    get   possessiori  of  a  pocket- 
book   of  which  he  had  liO    knov/ledge-  ard  whic.  was   in  a  secret 
iiravrer  of  a   desk  he   had  purchased. 

Corist I'uct ive  possession   is   th.e   possession  of  an  owner  after 
the   actual   coritrol   is   gone,   but   before  anyone   else  has    taken 
possession.      A  finder  is    guilty   of  iarcerry   according  as    an 

109 


\\it*-1pt^.JJi 


intont    to   take   possession   coirrcides  with   the   time   when  he 
tai;es  possession  wibhoui    ^ri^.t.      If  there    is    no   proof    to    tlie 
owrfi  r  he   lJ3.s   a   rig^^t   to    take    possession  on  the    £,i*our4>is    of 
public  policy,    but    if  there    is    a  clue  he   iias   no    ri,^.t    to    taJ» 
possession  for  hiciself  altiiou£,h  he    can    ialie    it    for   the   cfvmer* 
But    to    constitute  larceny    the    takir;£    of   possession  and  the - 
aniiiius  'fLirandi  laust    coincide    -  Re^iria   v  Thurborn,    Retina  v 
Preston,      As   betv/een  the    firider  ai'id  the    owner  the  place    of    , ^^ 
finding    is    irruViaterial,    and   the    sole    question   is  v/hethejp^there   C 
is  a    clue;    therefore   there    is    no-  differerice   between  property  - 
lost    and  mislaid   -  Re^iria   v  '"est. 

As   betweeri   the   f  ir»ior  ard   a  third  person:-  1,    if   tie    finder    is 
not    a  trespasser  he   h^as    as    a^^airet   the    owner   of  the  premises 
a   ri^-.t    to    possession,    arid  if  he    ^ives  up  the    property    to   the 
owner  of   the    premises,    as   lie    should,   he    is  a   bailor  and  the 
landowner,   as   a   bailee,   must    accourit    to   hixij  if   the    owrie  r  of 
the    property  never  apiears.      2,    if  ti:e    finder    is    a  servarit   who 
is   under  obligation   to   cive  up   the    property  tfi   the  i:ast.er  as 
beir;£,    on  his    _  prei.ases,   he  has   no  ri^t    to    ths 

possession;    but    the    sei'varit  has   a   rir)it    to    the   possession  of 
anythinc   he    fird.s,   uriless  he    firids    it    in   tr.e-  course    of   his 
emploiT^ient   by  his  laaster  arid   on  his   premises,      3,   a   trespasser 
has    no   ri£,:.t    ':o  possession   of   t..inr,s   fourid  as    a  ainst    the   ovtti- 
er   of    the   premises. 

It    is   no"^  riecessary  that    the    one    iri  whoiii  pi'operty   is   laid   in 
tl~.e    indictn^nt    should  have    the    title,    for  the    allegation  of 
owrjfirship    is    put    in  inerely   as    a  rimtter  of  description)    but     ' 
tx-is  description  must    be   sue:   thcit   the^  deft,    is  not    confused. 

(d)  Tortious  Possession, 

P^GINA  V  TOV/NLEY,    p.    577.        Deft,,   a   poacher,        killed 
some   rabbits,    and  havinc    put    sona    of   them  in  bar,s   arid   into 
bundles,    cojiceaied   them   en  the    seu.,e   land  wl^e-i'e    ti„e  y  l":ad   been 
killed.      He-  af  te  .'wards    cai.ie   and   reiroved  thern,      HiiLD,    it  was 
not   larceny.      Wild  ariiiaals   are   not    subjects   of  larceny,    arid 
the    killirxr    arid  redviciri^^    to   possession  and  the  asportation 
were    coritinuous;    the    subseq^aerit    removal  was   iri  coritinuation 
of   the    original   intent. 

Before   the    rabbits  were   killed,    as    tho"   were  wild  animals 
they  were  -not   iri   the   possession  of  anyone,    arid  so    riOt   subject 
to  larceny,      Tlxey  ^ere    in  the    poaciier's   possession  all  the 
time   after   they  were  killed,    as   t-.e    poacher  had    not   relin- 
quished his   possession,   for  the  land-owrier  had  not   takeji  con- 
trol -of  tliei.j,  arid  so   there  was    no  larceny;    althou£^-.   the    ser^ 
varits   of   the    larid-o^rier  discovered  the    rabbits   they    did  not  • 
assurae   possessio/i.      If  there  h^ad  beeri  an  abon  orunent   by   the 
trespasser  the    owrie  r  of   the    larid   v/ould  have    secured  possesa*- 
ion,   arid  any   subsequent    taking  a\7ay  would  have  been  laroeny* 

iiO 


PoEGllIA  V  FOLEY,    p.    531.        Deft    cut   dcvm   some   grass   on  the 
premises   of  X,    and  2   days   later,   having  raked   it   up,    carted  it 
off,    but   did  not   intend  to   abandon  possession   in  the   interval 
betv;een  the    cuttin^^  and  t.-e    rGLiovinr,,      II£LD,    it  was   larceny. 
After  d.-iattels   are   severed  fravi   the   realty  and  reduced  into 
possession,    that  possession  uiust   remain  continuous   in  fact, 
arid  continuity  -of  intend    is  not   continuity  of  possession;    bo 
when    the   deft's.    actual   and  effective   possession  ceased  and 
the   diattels  v/ei'e  lefi  upon  tii«   owner's   soil  the   constructive 
possession  vested  in  the    owner »      .ustice  Palles  dissented  arui 
held  tl^at  T/lieii.   the   possession  lias    once  been  gained,    it  must   be 
abaridoned  or  else    the    severance   arid  the   removal   are  to  be   cor*- 
sidered  as    continuous,    arid  th^    is    tlie  question  of   intent    to    ^ 
be   ascertained  by    the   Jiiry, 

Eeale   agrees  with  the   dissenting,   opi-nion  of  Palles  who 
was    one   of    the  ablest    of  the   Irish  judfjes, 

C0?.C.i0m'/EAL7H  v  STEIIILIIIC-,    p.    531.        T/aste   coal  from  mines 
were    carried  do\Tri  a   streaixi  by   currents   arid  deposited  alorig 
the   chai'iTie'l  and  the   banks   as  the    stream  passed  over   the   pre- 
mises  of   X.      Defto    in  a  boat    feathered  up  the  deposits,   cleaned 
it  from  gravel,    loaded   it    into  his   boat  and  carried  it   ashore 
into  bins,    froiu  which  place    it  was    sold.     HELD,    it  was  larceny 
if  taken  animo  furandi   as    the   severarice   ti^aii   the   I'ealy   arid   the 
asportation  ./ere  not   one   arid   the   sane    continuous   act. 

The    case    is   enti'rely  ^yronr,  and  foiirided  on  a  misconcepticn 
from  beg,inni?}£  to  endo      The    coal  became   part   of   the  realty, 
the    same    as    stones  which  liad  been  washed  down   tiifi    stream;    of 
course    if  the    coal  had  become    persorial  property  once   it  would 
remain  so,    but   this    coal  was'  a  part    of   the  waste  whicla  had 
never  been  persorial   property.      If   it  was    real   estate   there 
is  no  doubt    that    there  was   no   change   of  possession  fj-om-tlie 
moment   the   deft,    severed   it  until  he    got   asray -with  it  and  so 
there  was   by   no  possibility  larceny, 

REGINA  V  RILEY,   p,'591.        X  put'  some  lambs    into  a  fielji 
and  afterward  the   deft     .  put    in  some.     Later -the  defto   drore 
out  what  he    supposed  was   his   flock-,- but    it    contained  a  lamb-  ' 
belon£,in£   to   E,   vftiich   on   the  poor  li^ht   escaped  notice.      Deft, 
drove   the  flock   to   the  hoi:;se    of  G   and  bargairjSd  to   sell    the 
same-,     ?Iis  attention  was   then  called-'to   the   lamb   of  X-arii  he 
sold  tliat    also,     HELD,    it  was   larceny.      There  was    a  trespass 
at -the   time- tlie   lamb  was    taken -fi'om  the   fe-ild  ard.   it    continued 
until- it  -concurred- -with  the   animus   furandi, - 

This   case    is   larceny  on   the   same   groxmds  as  Regi-na  v 
Pirilayson,    that  possession  did  not   pass  till  tlie  de'ft,  dis- 
covered it,    and  Pollock  puts   tlie   cae   on  that   ground,      Parke 
decides   the   case    on  the  grovmd  of  a  contiriuing  trespass  whidi 

111 


I 


'Viu^,..^  ■ 


STATi:  V  C00L'L':3,   po    59oo        Deft,    obtained  rossosslon  of 
a  team  by  preterijdinjr,  that  he  delsil^3d  to   [O  -to   a   ser-taJn  plaoa, 
but    in  reality  ho   intericlod  to  £.0   to   anothero     Ke   did  not   at 
the   time    interii  to    steal   the   proper»tyj   but   after  he   got  poee^ 
ession^-he   feloniousli"    converted  it o    -liELD^      it  -was  Jiaree^ay-o  • 
TThen   the   takirx^   is   fraiidulont    or  tortious  ^ -the   animus   furandi 
need  not   exist   at.    the    !;inie    to    tjreate   a  subsequent  larceny j, 
for  the'  trespass    continues  uritil -there   is   sueh   a  fo?i.onious  ccr 
versiono  ~  .  .  •, 

?liis   case    is  trrong.o      It   was   not   larceny  to   take   the   team 
simply  v/ith   aci   intent  to  gp   to  a  different   place   thari  he   de- 
clared;   so   there  was   no   larceny  v.'-hen  he  hired  the  vehicle   and 
thei'e  was   rio    tak  ini:,   of  possession  yt'lzari  he    foiined  the   animvis 
furaridi   as  he  already  h^d  possession;    therefore   tlie- doetriiT© 
OlT  a   continuing,   tort   eanriot   possibly  be   tenable   arid  the   cas« 
is  Tsrroni^o     Even  where   there    is   a  trespass   at   first   as   in  Re- 
tina V  Riley,   tl.erG   eam-iOt   be   a   continual  trespass    eorisisltiiiig 
in  tajfin£,  tlie   proxiei'ty   out    of   the   possession  of  the   owier,  for 
ViThen  the   propei-ty    is    once   talten  out   of -his   possession  there  - 
canriot   be   arotiiei-  trespass  until  the    ajrier  gets-his   prop^arty  ' 
back  as    one   eanxo't    trespass  on  property    iii  his    own  possession. 
The  -doctrine   of  a  continuing;;  trespass    only  applies  vhe^Ti-the 
trespasser  has   not   possessions    as    in  the    ease    of  trespass    on 
realty,    and   tlaerefore  there    is    no  possibility  for  th«   exis- 
tence   of  the  doctrine    of  continuous   trespass    in  lareSr ny,   aa 
larceny  requires  a   ccrnbir*at  ion  of   intent   and  tqkinr;  of  poss- 
ession at  the   sane  rooment  o 

V7ARD  V  PEOPLE,   Po    595o        The    indietaent    charged  the   deft', 
with  havinr;   stolen  cccdS;    the   property  of  x.     The  evidenise- 
tended  to  -shov/  that  the    goods  liad  been  stolen  from  the   I'eal 
ov/ner  by  Xo     HSLD^    it  was   larceny »      Tlifi   possession  of  a  thief 
is  sufficient   to  make    it   a-siibject    of   larceny  aid  the  title- 
may  be   laid  either   in  tlie    r.  al   oyrier   or   in  the   thief  o  -  - 

This   case    is   pDxiin  ajii   clearo     A  thief  gets  possesaion 
and  a  subsequent    tliief  can  comr.iit   larcer?y  from  him.. 


ANONoy   po    595o     '  X  coomitted  larceny   in  London  and  lyaa 
appealed  in  Midiilesex,     HELDj   the   larceny  -^as    committed  in 
every- coxmty   into -\rhi^.   the    goods  were   aarrried  and  son  eppeal 
is -maintainable    in  whatever  county  the   plaintiff  ^^risheso       •    - 

ANONo  B   po  '596  a        Indi-ctment   for  stealing   goodT    in  the 
coxinty   of  Surrey ^      The   deft,   pleaded  tl^at   he  ^yas    indieted  for 
talcing  the   same   goods    in  tl-ie    county   of  Middlesex'  and  was  ac- 
quitted, and  that    it  was  the  sam3    felony  as- this,,     ?IELDp    this  . 
is  no  plea  for  neither    i^ourity  could-give   evidence  to  tJi«   oth«» 
of  a-feloriy   eonniitted  there  in  o 
-      ■  ''If' 


t^' 


a 


roo  ol 


Qi 


noriw 


V.'O 


■Ifi 


I 


This    case   represents   th.e   ols   and   sound  doctrine    that   lar- 
ceny,   beinc  r^^^ish^GJ^t    for  a   trespass,  'Can  only  be    indicted 
v/iiere   the   tal^inc  arid  the   trespass    occur.      The   case  decides 
that    if   iize   deft,    is    indicted   in  Surry  for  Larceny,   he   cannot 
plead  that  he  was    indicted  for  the    saiae    larceny   i'n  Middlesex, 
because   it    could  not  possibly   be   the    same    offence.      But   the    - 
bar  had  already  ber,un  to   doubt   tiiisrule,   as    is   sliov/ri  at   the 
erd   of    ti£    case,   and  to  think  that   tl-.e   deft,  'could  be  punished 
in  ariy   courity    into  uhidi  he   brou£,]ic;   tlie    goods.      The  judges    in 
this    case,  h^owever,    recoc^'iized  the    tr^ae   distinction  between 
g.n  appeal   arid   airi    indie t^i-ent    ;    in  an  appeal   the  process   is 
different   fi'on  that    in  an   indictiuent,    for  an  appeal  is   ari  ac- 
tion  to   regain  the   goods   arid    is   brou^lit   by  the   injured  party,- 
arid   so   he  must   brirj£,    tlae    appeal  vri.ierever  he    caji   find  the 
goods.   But    even  then   the    jury    is   suiiunoned  from   the    courity 
trhere   tii£-   r-oods   v/ere   takerr  arid    it    is   recognized  th  at    the 
larcerry   is   connitted   there.      Eut   the   bar    failed  to    see   the 
distinction  betv/een  ari   appeal   ard  ari    indictment   arid  their- 
viev;  finally   prevailed;    so    it  v/as   virell    settled  in  Erigland  by  "^ 
the    IGth  or  17th  century   that    a  man  could   be    iridicted  for  laj>- 
ceny- in  any  coiirity   i?ito  whidi    the   goods   viere   brought;    however^ 
it    is  not    a  question  of  where   the   trespass    aiid  the   larceny    -   - 
is    connitted,    but    it    is   raerely    a   question  of  venue,    arid   the. 
same   lav;    is   in  force  all    over  finglarid;    so    it    is  niuch-  di-fferent 
fr-au   the   i-uie   applied  in  so.riH    of  tlie    states    in  the   U.    S. 


liSX  V  PROV;£S,   p,    597,     -  The   deft,   was   indicted  for  lar- 
ceny   in  the    county   of  Dorset,      The   goods   were   taken  in  the     - 
island  of  Jersey,   b^at   they  were    foimd   in  the   possession  of 
tl.e    deft,    in  Dorset,      HELD,   the    indictment  -srill  not   lie.      The 
original    taking  v;as    not    sudi    that   the    Common  Lav/   could  take 
cognisance    of    it,    and    in  tliat    case  the   indictment  will,    not 
lie    in  tl^e   covmty   into  v/hicii    the   goods   are   carried, 

A  mari   caririot   com^^At   larceny  by  Coimion  Lav/    i-n  England  if 
he   stole   tlie    goods   outside    or  the  United  Kingdom,      The    statute 
referred   to   was,    that    if  anvorie   committed  larceny   in  the  Uni- 
ted Kingdom,   lie -could  be   punislied   in  any  part    of    it  where   the 
goods   were   brouglit;    but    it  7/as    ::;eld  that  the    islarid  of-Jersey 
was    rjDt-a  part    of    the   United  Kingdom,    but  was  merely   a  colony, 

PEOPLE  V   GARDNER,    p'.    598.        Deft,   was    indicted  for  ' 
stealin;:'  a  horse    in  II,   Y,      The   origirial  taking  was   in  Vt ,',   but 
the   dert,   was  <found  \Tith   tlie  horse    in  his  possession  in  II,   Y, 
HELD,    the   deft,    camot   be    tried  for  the  offence    in  II.   Y.   where 
the    original    taking   is   out   of   the   jurisdiction  of   tlie    state^ 
as   the    offeree    does   not    coritiriue   arid  accompany  the   possession 
of   tlie  thing. 

The   case    is  perfectly   clear,    as    property  taken  by  a  thi&f 

lis 


comes    int'O  his  possession  and  he   cannot    cor/unit  iarcjeny   of  it 
afterwardo 

•  COmiOinVilALTK   V  HOLDi;?.,    po    593 o         Deft,    stole   goods    in 
R,    I,    and  carried  'them  into  Masso      HELD,   he   can  be   convicted 
of  larceny   in  Masso      The   states   are   arialogous   to   the   counties 
in  £ri£,land  and  the    eolonies   before   the    revolution  ajibpted  the 
distinction  of   the   COirmon  Law 3   whereby   goods    tal^en  in  onf> 
county  arid  carried  to  another j,    there  -aras   a  felony   in  eachT 
Justice   Tho.rias   dissented. 

This   case   holas  -that    if  property   is   taken   in  one   state 
arid  brou^i-^t    into  .Mass  =    there    is   ia.rceny    in  Mass,   but    it   is 
heli    in  Masso    also  that    if   the    goods'  are   brought    over  from  a 
foreign   country,    there   is   no   larceny^      The   judges   try  to  liken 
the   states   of   the   Uo    3,    to   the   ilnglish   counties,    >.         this   is 
not    correct:,    because    the    reason  why  the   taking  in  one    county 
can   be   punislied  in  another,    is   that    it    is   all  one   jurisdiction 
and  sovereignty;    so    in  the   En^^isli    count i-es- 'the   original  ta- 
king  is  puTiished,   but   the    states    in  the   U„    S^    are  di'f ferent  ■ 
jurisdictions    and  a   new   taking  must    b'e   found  in  Mass,    to  pun- 
ish a  mari  for  larceny   there;    yet  Mass  0  holds    that    there   is  no 
new   taking   if   tl~e    goods    are   brought    over  from  a   foreign  coun*- 
try,   and  tiiis   siiars  how   absurd  the    rule    is.,      The  dissenbistg    < 
opinion  of  judge   Thomas    and  the    case    of   Stanlet   v   State,   po 
605,    are  perfectly   conclusive   tlxit    Coaimonjea:  th  v  Holder  is 
wrong;    there   are   plenty   of   reasons    fo-r   this    on  accoxxnt  of 
public  policy  as  well   as    on  principle.      In  some    states   the 
doctrine   of   continuing  trespass    is   followed  out    consistantly 
and  a  man   bringing   stolen  goods    from   a   foreign  courttry   is 
punisi.edo      Others   follow   tlie  Mass,    inale    and  punish   him  only 
TKhen  the    goods   h^ave   been   taken   in  another   state.      Still   other 
states   only    puTiish  him   if  the    original  taking   occurs    in  a  jui^ 
isdiction  where   the    Cocrmon  Law   prevails,,      All   these   ar<3  fourjr'« 
ded  on  wrong  principles   and    the  only   tme    rale    is  5   that   the     > 
larceny   occurs   arid   carj.   be   puriished  onlj''  where   the -gpods    are 
taken   into   possession  of  the    thief.,  -  ^rj 

ST'AIILEY   V   STATE,   pc    G05,         Teft,    was    iridicted   for  larceny 
in  Ohio,      The    goods   had  been  stolen  by  hL..   in  Caiiada   and  broug 
by  him  into   Ohico      HELD,    one    is    not    guilty   of   larceny  in  Ohio 
when   the   property   is    stolen   in  a'  foreign   country-   or   in  another 
state  and  then  brouglxt    into    Ohioc 

SUl.aiARYo         One  vrhc   severs   articles  from   the   rea3.ty   gets 
possession,    arid  this    is    continued  lintil   there   is   an    intent    to 
give    it  up   or  until   soiae    one   else   takes   possession;    althougjh 
he   leaves   the    property   on   the    ;  and   tliis    alone   does   not  -con- 
stitute  an  abandoriinent    of  possession  -  Regina  v  Townleyo      "Fhe 
theory  of  continuing  trespass    is  wrong  because    larceny  deals- 
with  one   act    of  trespass    only^    and  the   very  definition  of   lai^ 
ceny   shovis    it    is   erroneous; -so  Regina  s'  Riley -and  State   v 

114 


^ 


Coombs   <^re   wrongo      Wliero    one   thief  steals   fro:a  another  title 
may  be*  laid  either  in  the   owner  or  in  tlie   thief  -  War-d  v 
Peolpeo      In   the   case    of   an   appeal  whiiti  vras   ari   old  action  to 
recover  goods    arid   incsidentally   to   poj-iisli   for  larcseiiy,    *h'ft   veBr* 
"ue   oould  be   laid  in  ai'iy    eounty    into  ;Thich   the    gpOils    vr9r«   ear«' 
riedo      It  was  at   first   held  tliat   ari   indictment   eoiaj.d  be  laid< 
only   in  t.e   courity  -whex-e    the   goods    were   taken^  but  later  it 
■was  held  tluat    it    could  lie   in  any   county  wlisre    the    £.ocdB   'were 
carried;    but   there    is    rio    jui'is  diet  ion,    aocordinc   to    j?ai£,'Lish 
lav/ 5    for  ari  acu    dor^e    outside   of  the   £rifjlis..  doijinior^-s   •-  Rex  v 
Proves  o      According  to    tlie   IIo   Yo    doctrine,    if  the    ^pods-ara 
taken   in  one-    state,    there    oan  be   riO   puriisliment    in  ariothiir  on 
the-  ^rouriis    of  a   continuation   of   the    offence    -  People  v    Gajpd— 
ner.      But   accoitdin^:,   to  Mass.    arii  probably    the  majority  of 
states   tliere    can  be   a  puriislxient   for   larceny  when  tlie   £p  ods 
are   taken   into  arother   state,    otl    the   yoiirti   of  th<J5rie  being  a 
new   taki/At;    b^t  tiiis   view    is   erroneous   both  on  principle  and 
public   policyo 


SiilCTION      THTIEE,         TAiXIIIG     WITHOUT      GOHSEITT  o 

R£2I  V  SHARPL£SS,   p.    6II9        X  at    the   request    of   ti:s   deftv 
brou£>-it   roods    to  tlie  deft'so   apartments  with  a   viev    to   ti-ude  , 
Deft,    selected  soj-^e   stockinf;,s   and  then  requested  X  to  bring  to 
hm  50Qds    of  another  kind;   X  left   the   stockings   aa-id  went  baek 
to   £,€  b   the  'goods    but   there  v/as  no   positive   agreement   foi*  a 
sale.      Deft,   stole   the    s-tocJiings   arid  in  fact    tije  whole  ti'an— 
saction  was  pi*e  concert  ado     H£LD,    it  was   larceni-'.      The  animus 
furaruii  was   formed  prior   tc   the    act   and'  thei^e  was  no   a  suffi** 
cient   delivei'y    to   charige   th©   possess  ion^ 

The  whole  question  is  vfhether  ui'edit  was  given  arid  Beale 
thlriks  tliere  was  riot  on  tliese  factso  Therefore  the  merchant- 
did  j-iot  give  possession  as  he  n^rely  left  tlie  stockings  to 
save  hLii  the  trouble  of  taking  tliera  away  arid  bringiri-g  them 
back  again.  So  the  possession  v/as  talc  en  by  the  cleft  „  ijhen  hia 
firs-t  had  the  felonious  iiitent  and  he  clearly  oani'mitted  lar*-- 
ceny, 

R£GINA  V  LOVELLs   po    612 ^        X  gave   to  deft,   e-ome  kn.ives 
to   grind  for  vdiiijh  he    charged  an  exorbitant   price-      X  refused 
to  pay    BO  much  arid  thereupori  the    deft.,  made   thi«eats   and  X 
paido      HELD,    there  was    lirt;enyo 

The    consent   was    obtained  -by  force   and   so  there  was  no 
voluntary  cliarige   of  possess  iono      It   vras  the    same    as    if   the 
cliattel  was   pulled  away   frcLi  X  arid   it  makes   no  difference 
whether  the   force   operates   en  the  will   or  the    body;    so  tixis    is 
a  typical  ease    of  robberyg  whicl.   is  larceny  by  forseo 

115 


L^ 


R£G-i:iA  V  EDWARDS,    p.    Cl2.        An  owner  of  pi^s  vmich  had 
beeri  bitten  by  a  mad  dog  directed  that  they  be  killed,  and  bux*- 
ied.      The   jury   fourrd  that    the    ovrner  l^ad  not   abandoned  hia  pro^ 
pertyj    but   the   deft«  du£   them  up   after  they  had  been  buried 
and   cari'-ied  them    awayo      HELDi,    it   was  larceny. 

Tl"ie   property  •»/as   not    abandoned  to  v/hora   soever  might   take 
it.      If -t;  e   pic,s  had  been  buried  to   staty  Beale   ttiinks    they 
would  have    become    real   estate;  -but   because   sane   of  the    sep— 
vants   did  not    intend  to  put   them  tiiere   to    stay  but   fixed,  th&m 
80   as   to   be    removed,   this    is   a  sourid  argument   against,   the 
change   from  personalty   to   realty, 

TIEGINA  V  HAI'IDS,    p,    G14.        Deft,   put    into  a  penny -slot- 
machine   a  disk    of  metal   of  no  value,    by  means   of-  which  a   ci- 
garett.e   v/as-  ejected   which   'ii'ie  def  t ,    appropriated.     HELD,    it' 
was   larceny . 

A  conditioriai   offer  v/as  here  made  by   the    owriei-  of  th>€ 
m  achine,    arid   it    must    be    said   that   the  point  whej^i.   the   condi- 
tional   consent   vas    given,   v/as   not   when  the    cigarette  -was    taJeen 
frcca   the   box,    but  v/lia-i    it   v/as   put    into  the    box. 

it 

MITCHU].!  V   STAT'E,    p.    CIC.        The   owner   of  a  store  placed 
on  tlie   counter  a  box  of  matches   to   be  used  by   tiie   Public    in 
li£htinc  pipe's   and  ci£,ars    in  the    room,   and  deft,    carried  off 
the  whole   box.      HELD/   it  v/as   larceny.      The   ov/ner  did  not  aban- 
don his   rir^-t    to   tlie  matches   by  placing  them  in  a  pxiblic   pos- 
ition,   but   they    could  only   be   used  with  his   consent   in  a  par- 
ticular way  arid   in  a  liniit-ed  quaritity;    so    taking  the  whole   for 
another  use  ''Jas   a   trespass  „ 

The    consent  was    given  in  advance,  but   upon  a   cond.it  ion, 

and   it    is    perfectly  legitimate   to   give  corisent    to  do    something 

in   the    future   after   something  else   has  beeri   done   or  after  a 
certain  time   has    elapsed, 

REGINA  V  MIDDLETOi:,    p.    617,         Defto,    a   depositor   in   the      - 
savings  bemk,   presented  his    book   to  Virithdrav/   ten  shillings. 
The    clei'k   by-mis|,ake   entered  on  his   book   a  larger  amount   and 
put   down  the    saiie    before    the   defto,    arid  the  deft.,   noticing 
the  mistake,    took    the  book  and  the  money  with  animus   furandi 
at   the    time   of  takirig,      HELD,    the  majority   of  the    court   deci- 
ded that    it  was    larceny,    as  tiie-  clerk   did   not    intend   to   give  > 
possession  of  the  monei-    to   deft,    arid  there  was   no   consent    carii 
his    part.      So   the   property    did  not   pass-and  v^ether  there   is 
larceny   or   not  depends   on  whether   or  not    the   animus   furandi- 
existed   at   the   n^ment    of   taking. 

This   case  carjn.ot   be    supported  except   on  the  veak    ground 
that   the   clerk  put   the  money  down  wi-  th   the    implied  condlti-crk 
that  whoever   owned  it -should  take    it,   and  as   the  d&'SX.  dLd  not 

116 


own  the  whole  he   eould  only  take  his  part.     This   is  Pigott's 
view  and  is   the  view   of  the  preceeding   cases,   that    isj    that   a 
corditional    eonsent    is    £,iven   in  advarice   and  therefore   the>^e 
is  no   consent  -       if  the   condition  is  not  fiilfilledo 

But  the   faets  do  not  bear   out  this  theory  aryi  the   ease    is 
probably  wrong  en  principle ^   although   it   stands    as  laiv   in  £n^ 
lajTido    - 

'  '  ' 

WOLFSTSINj,   V  PEOPLE,   po   629 o        Defto   presented  a  draTt 
for  payment   at   a  baniio      llie   telle-r^  misreading  the  amount. 
Landed  him  too  much  g   ardi  th€   deft.j   although  seeing   th^  mis- 
take,  took   the   amount   given<,     HELDj,    it  was   lareenyo     T^  money 
in  excess    of    that  \iiiich  he  was  entitled  to  receive  was   tak^n 
without    the    owner -s   eonsent <> 

This   is  thfe   sane   as    the   preceedirig   case   and  the   possess— 
ion  is  given  upo     Undei*  the  above   eircvunstaruses  the-   title.-aLao 
passessj,   althou^   the  mistake   gives   a  ground  for  demanding  - 
bads -the  moirj^y  on  tha   theory   that   the   payor  has    beSome   a 
creditor  in  tumo      But  larceny   is   not   concerned  with   title   as 
it    is  ioeraly    a  breach   of  peaceable   possessiono 

SUlvaiARYo        The   Dominus  must   be    Invitus,   and   in  Cijse   of  a 
chsli  sale   tiie   dominus  does   not    consent   till   the   cash  is  paid, 
even   if  ha    leaves   ths  goods'  with   the   vendee  while  he   g^es  away 
for  others   <-  Rex  v  Sharpelyo      A  conditional   consent  may  be     ' 
given  in  advance   for   a  future   act    -  Regir^a  v  Hands o      In  No   Yo 
it  was  held  that  where   a  teller  paid  too  much  on  a  draft,    the 
defto  did- not   get  possession  of  the   esces^,   on  the   ground  that 
there  was   no   ©onsa'it   --7/olfstein  v  People «     Hut   Regina  v  Mid- 
dletgin  arid.  V7olfBt&in  v  People   cannot   be- supported  on  any  prin- 
ciple  of  possessiori.  although  they  probably  represent   the  lassr    • 
in  tlxose  jurisdietiorsB  o 


SECTION     POlTRo         LARCENY  AFTER  DELIVERY. 

(a)     Larceny  by  Baileeo 

REX  v  RAVEN,   po   631o        Defta  having  rented  lodgings   car- 
ried asray  goods   which   she  had  hired  with   the  lodgings.     HEIiDj 
there  was   no  larceny  because  there  was   no  trespass,   as   deft, 
had  a  special  property   in  the    goods   on  accoiirit   of  her  contract 
and  BO   there    eou3d   be  no  trespass o 

This  ease    is    correct^      Such  matters   as  these    are  fbr   the 
parties   themselves  to    settle 3   for,   as    there   is  no  wrong-ful  ij»- 
terferenee  with  possess ionp    t}.ie   state   Is   not    interestedo 

'  LEIGH^S   CASE;,   po   532o        The   shop  of  X  being  on  fire,  the 
defto   ranoved  sane   goods    in  the   presence   of  X,  who  made  -no 
objectiono    -Defto   afterwards    converted  th€m,   but   at   the   tin*©- 
of  taking  he   acted  irith  no  evil   intention.     HELDj,   the  deft's^ 

117 


v.; 


'>9 


-.J 


^'X> 


act  was  not   larceny  but  rAcrely  a  breach  of  trust, 

KEX  V  BAIIIIS,   p,    C.32,        Deft,   boin-oT/ed  a  liorse   for  a   spec- 
ial purpose,    and  later.,       ^.  when  the   purpose 
'jas   accoix.plished,   he    sold   it,    buL  he  had  no   felonious    intent 
when  he    took   the  horse,      r:£LD,    th.ere  was   no   larceny,   as   the 
subsequent   felonious   conversion  did  not    constitute  a  new 
taking, , 

These'  last    three    cases   are   correct   and  represent    the  law 
at   present, 

RjBGINA  V  TFRISTLE,  p.  633,  Deft.,  a  watch-maker,  having 
been  requested  to  examine  a  watch  at  the  house  of  X,  arid  hav- 
inj^  declared  ti-.at  to  fix  it  he  must  take  it  hoiue,  carried  it - 
off  in  the-  presence  of  the  wife  of  X  arid  subsequently  appro- 
priated it,  rJZLD,  it  v/as  not-  lai-ceny  as  there  was  no  animus- 
furandi   at    the   tirje  -of   taki'Tir,. 

Se   corid  case,   p.    G34,      Deft,  had  repaired  arid  i-etun-jed  the 
watch  to   X,    but   at    the    request    of   tl-e    deft,    x  gave   it  back    to 
hiui   '".o   further  re^vi^te,-  arid  he    subsequently  appropriated  it, 
K£LD,    it  was   riOt    larceny, 

RCGIIIA  V  PRATT,   p.    G3G.        Deft,   made    ari  assigriiiTent   of 
certain  personal   property    to  X  •oiuonj^  wiiich  '.vere    the    chattels 
iri   question,    ard  these   the   deft,-  fraudulently   renoved  after 
tl^e   execuition  of   the    deed.      Deft,   had    remained  in  possession 
of   the  chiattels    until   taking  ard.   by   an  arrancement   he  was  al- 
lov/ed   to  tis  e  th^^n;    the   jury    also  fourjd   that  the-  roods  at  the- 
tijiie   of   removal  <f/e re   not    In  the   custody  of  deft,    as   tlae  ageot 
of   the  assignees.      HBLD,    there  was   no   larcerv'   as    the   left's, 
possessiori  '^as   lawful. 

This  case  is  decided  on  the  same  pririciple  as  tlrie  pre— 
ceeding,-,  and  all  these  cases  uruier  this  topic  are  correctly 
decided  . 

(b  )      Larceny  by  breakirig   bulk   etc, 

CAR'^IER'S   CASE,   p.    C3S.        A  hired  S    to  carry   certain 
bales    of    goods    to  S,      B    carried  th-em  to  X  arid  broke   open   the 
bales   arid   took    Uie    goods    contained,      HELD,    the  iriajority    of  t]::e 
coui-'t  iield    that    it   was    larceny   as    the   bales   and   not    the    eon-  - 
tents  Yifere   delivered  to    tlie   deft.      Justice  -Brian  held   it  was 
not   larceny  as   the    posse  ssioTi  v/as    delivered. 

The   argumerit   was-  used  that   the    outside   v/rapper  only  was 
given  into   the   d^t's.   possession,    arid  so  when   it  was  brokai 
there  was    a   takirjg    of  possession   of   the  contents,      Ori  px'inoi— 
pie   the   position  is   absxa*d-as    it   would     lead  to   a  decision 
tiiat    if  -a  package   of   books    tied  with   a  string  wei'e   given  to 
thfi  deft,,    the   possession  of  the  string  only   is   given  over. 

US 


whatever  may  be-  said  to  belong  to   the  package   is   really  given 
into   the  dGft*So   possession;    it  rni^it   be    the    case   that,   the    - 
outer   coverir*^   only   is    given   to    the    carrier,    but    tliat  vovild 
involve   the   position     that    the    ofain'ier  was  not   responsible  for 
the   contents,  lyhid.    is   not    the   law.     However,   the  distlnetlon^ 
laid  down  in  this    case  has   beeome    settled  by  authority,   but   it~ 
is   an   except'ion  to    the  law  or  larceny  arid   cannot   be   defended 
on  priricipleo 

TWINARD'S   CAS^s   Po    G40o        X  tent-  to  defto   and  horse   to 
ri-de    to  a   certain  place,  -but   the  deft,    rode  to    Loridon  and  8oId 
it«      At   the  tlm£  t..e  defto  went  to  London  he    intended  to    ooiu*- 
vert   tl:ie   horse c     IIJETLDj    it  was   larceny  for  by  violati-ni^  the  p' 
special  agreeiaant   the -p:.*ivil;y  of   contract  was  brokeno 

The   def^.  oWas    really   given  possession  of   the  horse  in 
tills   case  J,   SO'  the    ease-  is  wrong  arid  is   overruled  by  Rex  v 

EarikSj,   p,;  -632,, 

*  '  * 

REX  V  MADOX,   Po    G41,        Deft,,  who  was  xiiaster   of  a  vesss-l 
took   6  firkins  of  butter  from  the   cargOo      Some   of   the   cargo 
was    battened  dcywri   in   th-e   hold  arid   seme   of    it   waa  stored  upon 
the  i-ialf  decks  -ard  deft,    stole  from   the   ladt   loto     HELDa    it 
was  not    larcsenyo 

The  pririciple   that   there    is    larceny  when  bulk    is   broken 
is   now  well   establislied,,   but    it  must   be    corifirj.ed  to   cases 
where  the^:•e    is   a   real  brea..ing  of  bulk,  whidi  was   not    a  o  in 
til  is   case  o 

»  t  s 

HEGINA  V  POYSE?.,   p.    G43,        Deft.,  who  was   employed  by  X    ^ 
to    sell   clotlieB    on  comnission  ard  retuiri  the    remainder,  which 
was   uridold,    received  from  X  a  parcel,   and  having  pawned  a  poiv 
tioTi  of  it,   converted   the   rest,     HELD,    it  was  lai-ceny„     The 
origiria:.  bailcient  was   determined  by   the  -first   wrongful  act   aid. 
the    subsequerit   appi-opriation  wqs   larceny, 

Tliis   case  carrries   the   doctririe   of  larceny  in  breaking 
bulk   to   an  extreme,    -  > 

COI.H.IOI'JWEALTH  v  JAI-.IES,    p.   645.        Some'  barilla  was   sent   to 
the  lififtop  who  was   a  miller,   to   be   ground,      Def/t,    groiind  it   -- 
and  then  kept  pai-t    of  it,     HELD,    it  was   larcenyo      By  tha  deft* 
act   the   special  contract  Viras   determined,    arid  tl:e    posseselcai 
thereafter  wae    in  the    o/^ner,   fran   v;h^m  the   goods   were   taken 
animo  furand.io 

This   case    goes   beyond  all   reasorr  as    there   is    no  bulk  to 
break    in  the   proper  sense  of  the  termo  -  -        - 

SUI.IMARY0        By  ari    exception  to  the   principles  of  possess- 
ion, when  the    ©aods   are  given  to  a  bailee  and  the  btilk   is- 
broken,-iu   is    larceny  -  Barrier's   Case,     Some   of  the   cases 

119 


■0 


,\7 


in  which  r^oods    are   cai^ried  to   another  places  may  be   supported 
on   tlie    ground   that    a   conditional  cor^s  a-it    in  advance    is   given; 
but   thtin  tl.ere  -ffould  be  '3^rcenyj   not  when  built   is   broken,   but 
wii.en  tl-e    i^oocXb  are   takei^     Wl\ile   this  principle   of  larceny 
when  b-ulk    is   broiien   is   established  on  authority,    it  must  be 
confined   to   cases  where   tliere    is  e   real  breaking   of  bulk;    but 
it  has   been  absurdly  held    in  Masso   that  'Hhsn  a  miller  kept 
some    of  the   flovj-er  he  has    £,rourii,    there   was   a  breach   of   the 
special   ccTitract   and  the  deft;,   t/(jok  poBsession   bortiousiy  at 
that   time   -■  Conr/iorxwealth  r  James « 

(c  )     Larceny  by  tricko 

7L£::  V  P£AR,    p..    G4oc        Deft«  hired  a  Ixirse    of  X  to   go   to 
S,    arid   then   sold    it    on   the    same   day  c      Deft,   hired  the  horse 
merely   to   cet   the  same 'into  his   possession  ard.  had  at  tls- 
tir.»e  thfi  ariimus  furandio      M£LDj    seven  out   of  eleven  jiid^^s 
held  that   it   \/a  s  felony    at   Coimnon  Law^ 

There  was  not   a  trespass  here  arid  so  the   case    is    opposed 
to    the  ti:;eory  -of  larceny,    as   there  was   no   disturbance    of  peao— 
ful  possess  ion^     Trespass   l^s   been  allowed  in  cases   of   gratui- 
tous  bailtiient  where   the   possessiori   cari   be   taken  at   once   by 
tlie   bailor  J    but    it    is    corifiri&d  to  gratuitous   baiLnents  -  at> 
v/illj   arid   to    s-uci^  al.one  are  the  remarks    of  Littleton  on  Po 
150   applicable  o      In   this    case  art  attempt    is  made    to  r.jake  a 
trespass    at  the  time    of    takiri£,  while    in  Littleton's   case   it   is 
tlie   later  wronf,ful  dealing  \/idch  is    the  trespass;    so  Little- 
ton's   iMle    does    riot  help  tMs    cas^*      Neither   oj    principle  or 
authority  was  thas   case    corixict   at  the  t  irae  of  the  decision 
but    it    is  ncv;  Isuf  e^a-eryv/here, 

RECtINA  V  BUNCEp   p=    G5l/        Defto»   a   gypsy,   by   pretending 
that   by  supernatural  powers    rhe    cou3.d  obtain  for  X  a   siam  of 
moneys,   ii'iduced  X  to    give  her   a  certain  article   to    be   used  in 
her   incantation  arid   to   be   retuiTied  to  X;    she   later  appropria- 
ted the   articlco     I-ELD,    if  tiie    doft^Sa    intention  v^as    OTily    to  • 
get   the   articD^s   t.o   practice   her  art   and  if   she    subsequently 
chiariged  her  mirid   ard.   corrverted   the    things,    it  was    not    larceny* 
But    if   a  iijere   trick   'Jias   employed  to   get   the   coeds   and   ttere 
was   no    iritention  to   x'eturri  tl-.em^    it   was  larcenye 

This    case    shews   th'at  the  doctrine   of  larceny  by  trick   is 
still    £^9nerally   appliodo 

SI.iITH  V  P.&OPIiE.^   po    Co3,        Deftcp   by   telliri^,  X  that   he;r 
husbarid  h^ad   be.?n   ai'ixisted  arsi  needed  money    to    j^et    released, 
induced  ..er   to   £^ive   hiia   certain  cliattels  'to   be  pav;ned  aru   to 
give    the  money    over   to    the   husbarid „      Defto  had  the   ariimus         ' 
furandi   at   the  time 'ard  appropriated  the  £po>?^    to   his   ov/n  use*' 
K£LD»'    it  waw   larccriVo     vr.~*en  goods   are   delivered  for   a  sj^cial 
purpose   custody   or«ly   j,s    given   to  the    bailee   arid  the  owner   re— 

■     120 


l^ 


tains  possession  arid  property o      If>  hov/ever,   the   owner  intends 
to  part  with  the  propert-y      and  delivers   the   possession  absol- 
utely,   it    is  not   larctnyo 

The  opinion  shows    the   ignorance   of  tdie   court   as   to    the 
true   £round  on  AirhicL  to  base    t};e   lioc^rlrieo      In  HawkJj'i.s    certaon 
cases   are    stated  which  would  lead  to   the    inference   that   the 
court  held  in  sucl-i   cases,    that    is  where   goods'  are   given  for  a 
special  purpose,    the   possession  does  not   pass.  '  All   such  are 
overruled  J   however,   arid  are   incorrect    on  theory  a 

SUI.n.IA'RY,        It    is  nav   settled  tliat  where    one   gets  possess- 
ion by   tricJ?   or  fraud  and  then   converts   the   property   it    is 
larceny;    Pear's    case    in  1779   started  the   trouble-.      The   sane, 
principle  was  held  also    in  18&9   -  Regiria  v  Eunce.      So  also    in 
No    Y,    in  1S73   -  Smith  v  People o 


SECTIOI.^  FIVE,        TPvAIlSPEH  OP   PROPiTRTY, 

REGIIJA  v  ROBINS,   po    C55o        S,    bailee   of  a   oonsi£,no<r,   had 
wheat    in  his   storehouse    in  the    care   of  a   servant.      Defto,   an- 
other  servant  (,   by   falsely  pretending,  he  had  been  authorised    - 
by  S   to   p,et  whea'o   for  a   special  purpose,    induced  the   fii*st. 
sei'varit    to   ^ive  hiin   the   key   of   the    storehouse-,    and  he   removed 
soae  wheat  which  he   subsequently  appropriated,      HELD,    it  was 
larceny,    as    th-e  property   remained  in  S,    the  bailee,   throughout 
the  whole    time, 

Thei'e  wac  no  parting  with  propei'ty  and  even  th^e  possess- 
ion did  not  pass  for  it  was  simply  a  delivery  by  one  servant  < 
to  aJtother,  arid  eadi  has  custody  ortly,  while  the  Laaster  has 
possessiori.  On  this  simpler  groiind  the  case  can  be  supported 
apart  from  larceny  by  trick,  as  it  is  as  much  larcerjy  as  wl^n 
ariy   servant   take. s    the  master's   goodsc 

REGINA  V  LITTLE,   p=    657<,        X,    a   servant    of  a  common  car- 
rier,  Y;as   given  goods    to  deliver  at   a   certairf  place „      By  mis« 
taking  the  place   arxd  by   the   fraud  of   the   deft,,   X  was   i-nluced 
to   deliver   the    goods    to   the   deft,      HELD,    it  was   lai'cenyo      X 
had   only  a  limited  authority   to   deliver  at  one  place  and  the 
property  was   not    parted  with   by  the  mistake  =      The  prop&rty  dJki 
riOt   pass   as    the   railroad  cOo  was   a  bailee    only  and  did  not 
deal   witli  title   at   all,    but   only  with  possossion.      Little  was 
guilty   only   on- the   application  of   the  principle   of  larceny  by 
trick;    but   Eustis-was   not   guilty  for   the   goods    were    in  the 
posses'sion  of   Little   and  he   voluntarily  gave   the   goods   to 
jfius  t  i  s  u 

RSM  V  ivIOORE;  Po  658,  P  and  X,  having  f-ound  a  ring  which 
P  V7as  induced  to  believe  of  great  value j>  defto  offered  to  set- 
tle  the   division  of  value  and  told  P  he  would  give  him  his 

121 


Biriare   th-e   next  day«      ?  thereupon   gave    the  defio    soms  money  aixL 
the  clefts   gave   F  tlie   rinc  with   the  promise   that  he  lyGuJLd. -re-- 
turn   tiie   foliowirjrg,  day    the  uoriey   uitli   other  money  to   be  P-s  ^ 
share   of   the   rinco     ULLD.,    the  majority  of   the    court  h&M  it 
was   larceny,,    arid   that   the  moriey  waa   deposited  witli   dftf&o   until 
half   of    the  value   tfas   £,iveri  hiirij,   and  that   F  parted  \?itli.  pass« 
ess  ion  ai;.d  not  with  property,, 

On  th3^   gromid  of  larceny  by   trick   this   and  the  f  ojJ. oud Jig 
cases   cari   be    suppoirted,   but   oyl  theory   there   is-  no   reason  for 
drawing,  a  line  between  property  and  poscesG-iono      Hcv/e-ver,,    the 
distinction  is   nov/  well   settled  in  law  j   but    the   incongj^uity 
of  suci.   a  doctrine    is    seen  from   the   fact    that    it  maiciis   a  par- 
son guilty  of  stealing,  his   own  prop&rty;    but   it    is   no  more-in- 
eonsistent    t:\.an  holding,  that    one   dc<as   not   taJce  passession  of    ' 
an  article  when   it    is   in  fact    f;^iven  hime  - 

REX  V  ATKlNSOUj   p„    660<,        Defto    sent   by  X  a  counterfeit    -^ 
letter   to   C   asking  for  a  loan   in  the   naufi    of  Bo      C   sent   the 
money  by  X  ■•|'"ho   delivered  it   to   the   defto      HJSLD,    it  was  xxct. 
larceny  as    the   property  was    intended  to   be   parsed  by   iixQ  de« 
livery   of  the   owrj©r„     ^his    is   not    laiv    on  the   point   of  laa'eeny 
sin/3a  Middleton^s   caseo      This    is  a   typica3.   case   of  wher^e   theie 
is   e::i   intent   to   pass    tit^-e,    bu.t   the    title   does   nolt   paas^      This 
opinion  that   there   is   no- larceny   is  wrong,    fox=-  si.noQ  MiddX®'- 
toBi's   case   such -facts   coristitutes   larceny    if  possesvsiojn  is    • 
given  and-title   dioes    not    pass,^   althou^Ji-  there   is   am.   intent   to^ 
pass    it,      Eeale    thiriJcs    that    in   the   U<,    S^   Atkinson's   ease  would. 
probably  be -followed  althou£h   there  are   not   enough   cases  slaoe 
Ikl  idiilet  on '  s   to   liecide    the  point,      Beala   agrees  \7ith  Atkinson  ^o 
rule^    not    on  the    ground   that    it   ean  be   distinguished  trcm 
theory'  froo:>.  larceny  by   triekj    but  beeause   he  loakes    it   aji  ar^ 
bitrary  and   anomolcus   exception  to  an  anomo&cus   rule;    for   i-t* 
is  universally  ad);^itted  that   ].arceny  by  trick    is   ari  anamoly<, 

RfiGINA  V  BUCPU.IASTE-R,  p,  oG3„  Deft,  preteud&d  at  a  race 
that  he  was  a  bookD:)aker^  R  in  eonsequenoe  deposited  with  him 
Boiiie  inoney  ard.  was  told  that  if  a  'certain  horse  won  he  would 
take  back  ttiat  raonsty  and  some  morCo  HJ^LD,  it  was  larce-ny'o 
Possession  only  ar^d  not  proparty  t/2.s  passSdj  as  R  did  not  in*- 
tend  tho.t  thf?  rjropsrty  sh'ould  pass  except  in  the  event  of  lo*^ 
sing,    which   did  not    occuro 

A  deposit   with    a   stake-holder  does    not   pa.ss    to  hijn  or  to 
anyone   else   till    the   bet    is -passed,   and  the  stak-e-holdei''  is 
merely   a  bailee   as-^d  the  title    to    the  moifiey    of  'the   winrj&r  never 
passess    to   the   stake -holder  nor  to   anyone   else,      Beale    thinks 
tlie  bo<;kmaker  here  niay   be   considered  as    a  stake-holder.    al« 
thoug!.!   tlie  re  was    a  differance,,- ,'       •:  as   the   court    thought,     . 
since,    the  nio?i,ey  was    deposited -with  the  one  vfith  whom  the -bet 
was   iiB.de J.   and  not  with   the   stake-holder e 

-    122       • 


REGINA  V   SOLOMONS,    pc    CGSo         Deft.,   having   appare-itly  put 
3   shillinp,s    in  a  purse,    offered  to   sell    the   purse   and  eo'atents 
to  X  and  X  accepted,   but    the  purse   contained  3  haifpeneeo 
HELDs    it  was  not   lairceny   as   X   intended  to  pass    the   property   in 
his  money o 

REGINA  V   RUS^ETTj    pc    671,        B,   havin£,  been  offered^ 
hoi'se   by    '^ie   defta,   agreed  to  purchase   and  gave   the  dafto   8 
pounds    in  part   payment,    the   balence    to  be  paid  on  delivery,  / 
sumI   ari   agi'eement    to    that    effect  was    signed  by  E   and  tie   deft, 
E   testified  that   he   did  not  -expect    to  £;et  his  money  ba«k   again 
but   to   have  the   horse.      Deft,   did  r^fot  deliver   tl-.e   horce   and 
did  not    intend  to    do  so  at    the   timea     HELDj    it  was    lal•^^ny, 
B   did  not    intend  to  have    the    property  passsed  and   i't    lid  not 
pass,   for  "Ghe  money   was    by  vray  of  deposit    in  daft'so   liarids 
till    the  delivery   of   the    "..orse» 

If  the   case   at    ba  r  was    a  cash  sale  v^ith    a   simultaneous 
delivei'y'j    the   title    of   course   'JouM   not   pass;    but    sucl;  is   not 
the    casSo      According  to   the   reason  of   the    court    that   there   is 
no   conti^ct   aril  the   fraud   of  the    vendor  vibiafces    the    same   ab 
initio 3    the   vendee   could  not    recovei*  damages   in  a  civil  act i en 
for  a   breach  of   contract;    'buz   Beale   says   tliere  ;7as   a  contract, 
for  although    the   deft-,   may   not  have    intended  to    performj^  he 
did  intend   to    pro-.^ise.      But   the   passing   of  the  titj.e   does   not 
depend  on  v/hether  there  was.   a   contract   or   not,    but  upon-whe— 
tl^r  tlaere  v;as    tiie    intention    of   passing  the   title    to   tha  mcsaey 
If  the    title   did  not  pass    tlie   deposit    of   the  moriey  ij-ouid  laav« 
to  be   corisidered  as   a   security;    but    if   it  was    the   intention 
to  make    it   a  security,    the   payee  'jould  ha.'sre   to   keep    the  moaey 
separate   till   the    rest  v;as    paid  and   could  not   use   it   till 
theno      This    is  absurd,    and  s  o  on  the    questions    concerned  both 
with  the    contixict   and-v/ith   the    intent,   to  pass   the    tit  la,    the 
court    is  \aTongc, 

S'UTvIMARY,        Pear's    case    is    responsible   for  the   idea  that 
v/hen  property  passess   there    ie   no  larceny,    but  vhen  possesslcn 
oiily   passesB   there    is   larceny,    on  the   ground  that    the  possess- 
ion is    taken  against    the  -Jill    cf   the   o-jnerc      In  Atkinson's 
case    in  179S.^    it  v/as  held   tliat   v;here    the    tit_e  was    intended 
to   be   passed   it  was   not   Larceny;    but    since  I.Iiddleton' s   case, 
it    is    larceny   in  Englarid   if   title  d.oes    not   pass,    althoutji   th^ 
is   an   intent    to    pass- it.      The   U,    S«   vroTold  probabli^   folj.ow 
Atkinson's   case  with  vliicli   Eea-le   agrees,   making  art  arbitrary 
exception  to   an  arbitrary   rule^      In  tiie   case    of  Bets,    the 
stake-holder   is  only  a  bailee  and  the  title  does  not  pass    tiH 
the    race   is    decided,   arid   the  'title    of   tlie   vinner's  money  never 
passess   -  Regina  v  Buckmaster,      The    case   of  Regirxa  v  -Russett 
■ffent-beyond  all  boi-inds    in   tlie  matter  of  passing  title, 

123 


iV 


■-»-  V   W 


3£CTI0M   SIX.         AIIIMUS  FURAflDl . 

?\ji.X  V  Y7ILKliIS01I,   p»    G74.        The   prosecutors  v;ere    euployed 
by   G   as    cai*riers    to  pass      nux  voiiiica   tkrourli  tl.e   oust  on  house. 
and.  load  the   same   on  a    ship  for  export,    arid  the^^  [^ave  bond  to 
the    (government  'tliat   the   £Oods    should  be   exported,      Thsy  ecr- 
ployed  the   d^ft.   v<'  to  convey   the   floods    to    the    sl:ip,    but  on -the 
v/ay,   V/,    arid  ui,    to  wh.0i.i  the   £Oods   belon^^ed,    took   out   some   and 
replaced  theiii  with   other   stuff,    the   purpose   bein^:  /to  escape 
paying,   interrial   revenue   duties'  placed  on  the   £,oo.ds.      'I£LD, 
T'  and  M  v/ei-e   guilty   of  larceny,      Tiie  prosecutors  had  a   special 
property   in  the   i^oods   until   they   reached  the    ship   arid  also    ari. 
interest    ii*  the   possession,   and   the    intent    to    deprive   than   of" 
the  '£;,oods   a^airist   their  will  v/as   a  felonious    intent   a^   against 
them. 

The  'bailee  l.ere  v/as   urjder  axi   ohli^^ation  '  arid  the   act  of 
the   de^t.s «   v/ould  in  fact  have  made  hixu  liable,      T  he   defts. 
nvast  have   ini-^nded  to   do  -.Thiat   they   voluritarily  did  and  althoug 
tlie  luotive  uay  j>ot   have  been  to   injure   the   bailee,    they  \7ou.d 
in  fact  have  done    so    if  their  purpose  had     been   carried  out. 
An  owner   then  niay    be    guilty   of   larceny  fran  a  bailee  v/Iien   the 
effect    of    sucli   taking/  is   to    injure   tl:e   bailee,  whether   there 
is   that  motive    or  not.      The   bailee    is   entitled  to   possession 
arid  he    is   deprived   of  th^t    possession   by    the    owTier's   act, 

PJ2GIIJA  V  T.V£BST"£T^,    p.    67C,        H  'sras    in  possession  of  a   shop 
in  whid.    goods    were    sold   for   the    benefit    of  a-  coopei^ative    so- 
ciety,   t:\e  riierjbers   sliaring  profits   arid  losses.      H  v/as   a  mejober 
and  had   tlie    sole  liiariageinent   and  was    responsible   for   all    tlie    - 
money   and   goods    in  his   possession  as    such  Liarzager.      Deft   ,  ,- 
also  a  :aeut)er,    assisted   in  ty.e    shop,    and   took   some  /aoney  pla- 
ced by   ;■'  in   tiie    till.      The    indictmerit    laid   the    goads    as   the    • 
property   of   K,      HELD,    the    goods  -jere^  correctly  laid  as:   the 
pi-operty  of  y,   and   lathough    the   deft,   v/as    a  partner,  he  vsls 
guilty   of   larceny,   as   I'  v/as    responsible   for   the    goods, 

SDIMS  V   STAT-i:,    p.    G79.        S,    as    constable,    levied  on   the 
goods    of    the   deft,    arid  then   left   than    in  hei*  possession,   v/ho 
before-    tl-.e    time    of   saLe,    disposed   of  them.      HELD,    the    goods 
v/ere  properly  laid  as    the    property    of  X,    fo'r  an  officer  who  -g^ 
levies    on  goods   acquires   a   special  property.      A  larceny  nay 
be   corxiitted  by   an   ouner   stealing  his    own  property   if  the    ta- 
king be   anLno   furandi   or  v/i-th-  the   fraudulent   desigri  to   ch^arge 
tlie   bailee  v/ith    tlicir   value. 

'•T.^&n   goods    are    in   the    possession   of    the    sheriff  and  tl-je 
owne-r   takes    ti.a.;,     it    is    larceny  foi-  he  has  no    right  to  -thom- 
theri,      V.hen  t:.e    sheriff   gives    the   possession  back   again  to-the 
owner  as    receiptor,    it    is   not    on  'general   principles   larcerc 
for  the  receiptor  gets   possession.      The   difficu] 

124 


'\ty 


case   is  not   one   of  anamus  but    of  the   taking  and  the   eourtj   on 
the    general  principle    of  the   rece-iptor  getting  possession,  dfi- 
citied  tlmt  a  new   trial   be   orderedo     But  as   a  matter  of  fact   it 
is   i^eneralD.y  he3,d  that   a   reeeiptor  does   not   g,et  posoesBion, 
but  has  nsJced  ciustody  only^   and  he   approaches   BOcaeTPhat.   to   the 
position  or  a  servant „      If  "^lis   is  the   ri£jat   ^iev?  tl*?   astuaJ/- 
deeicion  in  this   case    is  ^rong.  and  its   reasoning,  breaJ^a   down. 

PiiX  V  CABB  AGEp  po    682o  '     X  was   on  -iihe  point   of  trial   for 
the  larcceny  of  a  horsso     DofVo   and  a  ^if«   of  X  took  tii-Ae  horse 
an^i  ba(«)^e.d  It    iTAto   a  soal  pito     Tha   dex'to   eontemled  ti-jat   it 
was   iareeny     not  ^   as   thex-'e  ^-as  no   intey.t   trj  e^oiivert    it   to    the 
use   at  4he    taX-er  ananio  fur-araii   at   luai'i    tsausao     KKLDj    it  was 
larceny o      The   taking  is  fraudulent  wht^n  tiiere   is  an  intent  tc 
deprive  the   wjrrxer  of  Lis   property »   ar^ti  taking  luarl  ©aiiaa   is 
not  nassRsaryo 

If  the  pr©perty   is   ta:i?en   in  sueh  a  ">9-ay   that   tha  power  of 
doDii.nJ,on  eser^-lsed  by  the   ta>;er   is   indc^isi stent  with   tiie^  eonr* 
tinuous   3%Qr-^i.B3  cxt  the   ri£,lAs   of   ownerahip  -by  tha   I'eai  owner, 
it   is   l-aresinyo      This   ease    is   law    in  the   Uo    So   es:eept   in  Ind<j   - 
The  gaods   aged  not  be   tafean  to  benefit   the    taker ^  but  "yhsn 
there   is  a  ^^sstrueticn  'shore  must,  be   both  a  tairiri^  and  a  de*" 
strui5ti-r>n;    th^us   If  defto  liad  got   th»  horse   it  woiold  not  be    • 
larceny o 

KZX  V  MCRPXTj  po   683o        Defts*.  were   sej^yaats  of  W»  "Whose 
bailiff  delivered  fraai  time   to   tiios   to   deft^or   '^^^  ^^  ^'s 
grar^aryy   baai:>s   to  be   fed  to  the  horses   of  Wo      Deft  Bo   by  a 
false   feeA  tooJc  out   soci9  beans  ^  whitS:   tliS    inten^^-d  to    give  to 
th©  horses o     fTELDg    it  ^?as   larceny  as  the   purpose   of  the  taking 
is-  ia!r.rsitgria4o 

Suppose   in  the   above   caae   the    serrant   gave   2  quarts   of 
grain  to  the  horses  ard  then  went   bad?   ani   gpt  aixsth^r;   as  to 
the;  first   S  quarts  he   miver  gets  possessions   as  ^e   suppose  him 
to   be   oi'dered  to   gi-wi   <i  quarts   tc   the -hordes;    as   to    Ijha   third 
quart    it   in    difrrieult   to   see  h.a?i  his  action  eonti«ary  to   crdara 
makes   it  laz^envp  for  hr.    is   iitill  purporting  to  aet   a3  a  sej?~ 
-vant  araJ.  is   realiy  ^ing  the   same  as  bef5:!e*8y    so   it  samoft  b®  ^ 
said  to   get  possession   in  Uie   ox^   ease  arfi.  r^ot   in  tha   othero 
In   the    s&se  at  bar  the   deft  o   tioes   not   deprive  t'he.  nisster  ef  tSi 
beans   ard.  tl-.i@    ©aae    is  wrr«ng  ccri  the  whole ^    ss   it   la   d-gsibtf'al     - 
if  poBsession  iB   tsJsen;    but    if  the   possession  is   taifen^   the 
neeeBsary  ani-mus    is  net    present j   for  thsre   is  rsife  tlis  animus 
to  deprivti  the   <K!rr^r   of  Ifci  «  benefit   and   it    is    rsjt  so  u&ed  that 
he   is  dj8pri\?sd  4f  the  U3t^  of   'Ato     Th©   eass   la  however j>   saomon 
lasr   irx  Bn^land.g   but    it  wa-s   later  altered 3   arxl   it  n«'>?®r  earne  15) 
in  the  Uo   So   ■  -  .  _    _  - 

RSX  V  DXC.KINSON9   po   684  o        Defto   took   soms  art  isles  of 
apparel  belonging  to   a  girl^  his  purpose   not   being  to  depriv® 
-  125 


.-7 


her  u3,t?jnately   of  themj   but   -co   induce  her  to   go  to  a  meeting 
place   for   illicit   purposeso     KELD^    it  ^ae  not   iareeny-o  ■■ 

R?JC  V  CRin^IF^   po   6S7o     '  Indictuent   for  stealing,  a  horce, 
bridiiBBj   Gadiilss,;   s-rid  a  bago      Dsfto   too};  away   all   the  property 
together  but   aj'ter  proeeedijni£,  socj&   distaj-iee   turried  the  horse 
loose  and  .-^ai^ried  off  the   r<3    st   of   the  propertyo     Deft^So   iiv- 

tent-to  i,ake  xhe  horse  was  cierely  tio  i^arry  off  eonveniently  ^ 
the  other  ai'ticslsso  HSLDp  it  was  not  'i^arceny  as  to  the  harse 
but  was   as  to  tJae   rest   of  the  propertyo 

'^JT-GINA  y  SPTIRGBWIs   po   G35o        Defto   t^ok  a  bae  containing 
papers  froca  m^   offxeeo     HSLD;.,    if  the   defto   tool?  ti\a   same  "s-ith 
an  Intei-it    fe'   exaet   a  .reirarcl  from   feiie    osrn.er*s,   arid  with  a  detei*- 
raination  net  to    f.l-'m    thaai  up   ti22,   such   reward  was   given  him,    ' 
it  mis    'ISiX'CiRSAY'i   but    if  his    intention  ^s&s   to   return  them  absol*- 
utely  SsTui  at   fjll    events p  merely  t.al?in£,  a   dianee   of  a  rewarrd 
being,  gl-ijien  hisa  for  pretended  ser^l^ep    it  was  not   Sarcjeiriyo 

Merely   intendirii;,   to   wait   a  '.yhiie   to   see    if  tO:ie   reiyard 
■arill    be   giv«n  is  not   the    anJonus  furarjdi   required^   but   if  the 
intent    is   t-o   feeep  the  property  'uhiess   a  reward  is   offer^dg 
there    Is  a,  suTfifiient   animus   furandij   for  there    is  ari  interfei? 
anee  with  the  <3W7,v©r"s   doaainionj    as  hs  has  to  buy  his   dojaiinion- 
to  get    it   basko 

'RSGINA  */  GARDNflRg   po   6860        Indietment  for  stealing  a 
chasko      Defto   took  the    cheek  from  a  boy  \^o  had  found  it,  and 
he   did  riOt    g.ix^-e   Irjforaation  lffii»ediately   to    the*  ovnerj,   but  wi"&» 
held  it    in  the   Qjcpeetation  of   getting  a  revrardo     HELDj  neltbey 
the   taJfir^   nor  the    withclding  was   larceny  0 

Tl-.e   finding  sf*  the  fasts   in.  this  ease    does  not    shew   en=* 
ough  te  provs-  Xar-senyy   for   it    is   consistent  with    the   firming 
that  the  lisfto    laterdad  to   keep    It   only   for  a  -vinll^  to   see 
If  a  revsrd  be   offered;,   ard.  then  to  gi-'^^TS    it  upo     As   t©  la2«0eny 
from  the   boy^   lyxB  strong  argisneint    is  that    if  there  was  not   tte 
animus   f"ura;oii.i  aga.in.3t    the    ovmerp   there   eould  hartU,y  be  saiA'  ■ 
to  bft   a  f£i:k3r4lous   intent   as  to  a-thir<i  person  who  intei-v^j«d<, 

ESGINTA  'i)   TRSBILGOCKj   Po   688,        X  left    in  the  pos&ession 
of  the  dafto  a  loeked  sheet   containing  plate,,   arri.  defto  broke 
open   th.a-ab^tjt  arxl  remf^^v^d  sc^«  of  th<5   plate  and  tli^en  pawned - 
the  whol^   p^pertyo     The  prisorijRr  was  uriabls   ta  redeem  it ,  btxt 
the  juyy-  dee?i3red  tJjat  he   interred  ulticoately  to  return  ^i<e 
propertyo     ILRIiDj,    It  na.B   Xareenyo      The   firiding  of  the  jury  is 
that   th^r-e  le.a  an  \il^tijm.ts   Intention  tc   return  and  not  tiiat 
there  ifa.s    the   origir/al    intention  at    the   t-dme   of   the  asporta- 
tlori  to  rm.k&  a  iosErely  temporary  use   of   it, 


o 


Thers  fas   a  ©ondltionaJ.,  intention  to  return  here  and  tJae 
-    -  126 


rNixr- 


*iu 


condition  might   or  mi^t  not   be    in  the  power  of   the  deft',   to 
perform.     Whenever  the   desire   to   return  rests   on  a  condition 
whi<±i    is  not   in  the  deffso   power  absolutely  to  perform,  Beale 
thlrJss    it    should  be  -called  lareenyp   for  he  deprives   the  owoar 
of  the   power  over   ito         -      -  -  - 

'  '  ' 

RfiGINA  v  Htl-LOWAYa   Po   692o        Defto  was  employed   in  a  ta»- 
nery  to  dress    skin^p   beinc  paid  by   the  peiee<,     After  dressing' 
the  'Skins  were   stored  in  a  warehouse  adjoining  the  workshop^ 
Defto   removed  skins  which  had  already  been  dressed  from  this 
plaeep   but   witb  art  intent   to   deliver  than  up  againo     JLELDj    it 
was  not   larceny.      If  the    intent   at   the  moment   of  taking  is   not 
to  usurp   the   entire  dorriinion  over  th-e  property  and  to  make   it 
the   taker's   ownj,   there    is   no  larceny, 

Tliere   is  no  taking  of  possession  in  this   case   for  during 
the  lawful  and  ordirary  working,   the   deft,   eould  not   get  poss- 
ession as  he  was   a  servant ^   and  as   this  was  not   lawful  outside 
working  there  was   no   taking  of  possess ionj,  but   it  was   tha 
same   as  when  any  servant  moves   goods   of  the  raastero     Assuming 
however,   that   possession  was   taken,   the  necessary  intent  was 
not   present  for  tliere  was   no   intent   to  keep  the    chattels  and 
not  to  let  the    owner  har^^  than  without   payirjg   for   theaj   hxxt 
the    intent    was   to   give   than  up 9  with   a  hope   that    scme-ttiing 
might   be    received  for  thai:;    so -on  this    ground  the   case    can  be 
di8tin£,uisl*ed  frcm  the    succeeding,   and  on  th.is'  distinction  aU 
the   English    eases  are   settled  arid  all   the  Ue   So   eases   exespt 
in  Ala 


9  • 


REGINA  V  HALLj   p*    696a        Defto    removed  soiTfi   fat   belonging 
to  X  frcm  a  room  in  which    it  was    stored  ani  placed   it   on  the 
scales    of  X  in  ar*other  room,   with  an   intent  to  sell  i't   to  X 
as  the    propertT^  of  Y  and     to  appropriate   the   proceedso     HELD, 
it  was  larceny o     There  was   the   intent   to  deprive   the   owner  of 
the  dominion  over  his   property   for   it  was    interjded  that    the 
owfter.  should  not   get    it   back  without   paying  full  value  for- 

ito 

0 

Defto   does     '        take   possession  herOj,   for  in  the   ordirmry 
course -of -bus irtess   fat   ixk  the   scales   is -not   in  the   chandler's 
possessiono      The  whole   intent    is   to  deprive'  the   charidler-of 
the   dominion  over  his  property  and  the  defto   does    so.      In  tbe 
proceeding  casep   the   skins  were   taken  fi'oni  a  place  which  be- 
longed to   the  master  a«i  where   property  deposited  in  tlie   ordi— 
naiT  course   ©f  trade  would  be-in  the   possession  of  the  master^ 
and  when  put -onto    the  pileg   they  were  also    in  a  place  •ahere - 
they  were   in  the  possession  of  the  master o 

TIEGINA  V  B£ECHAI.l5   po    697„     '  Deft,   took   railroad  tickets 
from  the   office   of  a  raili-oad  Co,     HELDp    if  the   deft*   took 
then  with   the    intent   to  use  th-sm  for  his    cwri  purpose,    eitbar 

127  -. 


to  give  away,  or  to  sell,  or  to  travel  on  them,  it  would  be 
larceny  althoueli  they  were  to  be  ultimately  returned  to  the. 
Go.  -  ....  •        - 

The   case    is   clear  as    the'  thir^    is    to  be   returned  only 
upon  the   ov/ner  byiyinc,  it   backo 

SUI.D.IAHYo        Ari  owner  may  be   ^''^ilty   of  lai*eeny  from  his 
bailee  wheri    the   effect    is   to   injvire    tlie   bailee  by  depriving 
hici  of  possession,   v/hether  that    is    the  motive    or  not   -^  Rex  v 
Wilicinson,      Beale   thirties   that    one   tenant    in  cotamon  can  steal' 
frari   the  possession   of  ariother  co-tentant    ~  Retina  v  Webster, 
If  property  is  taken  in  sud^   a  way   that   the  power  of  dotiinlon 
exercised  by   the    taker   is   inconsistent  with   tlie  continuous 
exorcise   of  the-i-i£JI--t    of   ov/nership  by   the  real  owrier,    it    is 
larceny  provided  there    is    a  takinr^  ac company ing,   -  Rex  v  Cab- 
baf^e;    the   only  jurisdiction  contrary   to   this   is    Ind,  ,   vrhidi - 
holds    to   tlie   old    idea,'  arjd  the   old   idea  of  lucri   causa   is   done 
away  with    except   there.      In  Eri^^nd  it    is  held  that  a   servant. 
who   sets  more   oats   from  the   bin  for  his  master's  hovse   thari  he 
was   allowed   to   is   £,uilty  of  larceny   -  Rex  v  l.lorfit.      \7here   one 
takes  property  with  an    intent    to   exact    reward,    it    is    larceny, 
but    if  taken  orxly  with   the   hope    of   £,ettiri£,  a   reward  and  with - 
tl\e    intention   of  tiltimately  Teturriinj^  it,    it    is  not   -  Regina 
V   Gar^ier,    Regina  v  TTollowayo      Beale   thirxks   that  whei'e   one 
takes   fi'Cfa  a    finder  with    tlie    intent   not   to   return   it   to  him,  ' 
but  to    tl-ie    real    cwner,    there    is    no  larceny   -  Regirua   v  Gardner, 
\7henever  the  desire   to    returri  the   property   pests   on  a  condi** 
tion  viiich    is  not  absolutely   in  the   power  of  the    taker  to  pei^ 
form,    it    is    lai-ceny   -  Regina     v  Trebilcock*      The  principles 
vrhere   goods    are   taJcen   to   get   a  reward  apply   also    in  cases 
where  workmen  try  to   palm  off    goods  already  worked  on  and  cre- 
dited to   ti^em,   for  'their    own  -  Regina -v  Hollo\7ay;    all   juris- -" 
dictions   except  Ala.   agree   tl-^t   there    is   no  larceny   in  this- 
case;    but    if  thej-   are   so  placed  tl:at   the  real   owmer  oust   pa,y 
to   get   tha^i  back,    it    is   larceny   -  Regiria  v.  Hall, 


SECTION      SE^/EIIo        AGGRAVATED   LARCENY, 

(a)     Robbery  and  larceny  from  the   person. 

REX  V  FRANCIS,   p.    699<,        C  was    reqiiested  by   the   d£ftSo    to 
change  a  piece    of  i.iO ney,    arid  havi'Tig  taken  out    some    pieces 
froca  his  pocket,    orie   of  the   defts,  hit  his  harid  ani   the  mowfey 
fell  -to   tie    ground.      C  attempted  to  pick  up  the   coin,    but  the 
defts,   by  threats   of  bodily  harm  madre  him  desist   and   t'hsmsel- 
ves   picked  up   the    coins   arid  rode   off,     HELD,    the   deftso  were  • 
guilty   of   robbery,   as  -a   taking   in  tlie  presence   of  the   own^sr   is 
takirig   frcxii  tl-.e   person„ 

128 


yjBV 


The   case   is  correct,.      This  was  aii  inJiotmeint   for 'robbery, 
in  which  both  an  assault   and  a  larceny  must  be  alle-eedU,      If      - 
one   taJces  property  secretly  arai  keeps    it  by  force,    it  is  not 
robbery X,      Also -force  used- against   property  and  not  directed 
toward  the  person,    is   not    robbery,    as    if  a  watch  is  atrached 
to  a   cl^iain  on  a  person  asleep   so    that    it    is  neoeaoajrst  to  jerk 
it   violently   to   get    it    off.      The   force   in  robbery  must  be  used 
in  each -case   to   overcocoe   the  power- of  protection,    and  the   spe- 
cific   intent  must   be   to   comnit    robbery,   unless  there   ig  en   ii»* 
tent   to   coaoait   a  crime  heinous    enougja   to   supply    imputed  an~ 
tent,   sucli  as   rapoo  •  ■ 

REGINA  V   SELV/AYy    p,    700 o        X  was  paralyzed,'  and  while 
sitting   in  a  room  v/ac;   struck   by    one    of  the   deftc,   while   the 
other  took  a  cash  box  froa  a   cupboard   in  ti*e   rooo.     The  jury 
found  that   the   box  was  under  the.  protection  of  X,      HELD,    if  X 
was    in  tlae   room  and  aware   of  the    existence   of  tlie    r,ox,    it  wss 
virtually  urider  his   preelection,    and   so  tiiere   was   a  case   of 
larceny  from  the   person, 

Tliis   case    is   sici  le^      It    is   a   question  of  fact   for  the 
jury   in  every   case  where   there    is  ari   indictment   for  larceny 
from  the   perv/on,   whether  the    diattels   are  ur<ier  the  protecticn 
of   one's  person,    but   the  person  need  not   be   strong  enough   to 
protect    themo      This    is   robbery   in  this   case  for  the  blow  v/as 
sufficient   to   overcome  all  protection,   but    it  would  not  have 
been  robbery   if  no  blow  had  been  struck,    but   orily  larceny  fron 
the  person. 

SUl.EvIARy o        Taking  forcible   possession  of  that  which  is   in 
the   presence    of   the   person,    is   taking  from  the  person  -  Rex  v 
Francis.      Taking  secretly   and  keeping  by   force    is  not  robbery; 
force  used  against   property  and  not   against,   the  person  is  not. 
robbei'yj    a^'-'d  both   ari   assault   axid  a   larceny  must,   combine   to 
n^ake   larceny.      Also  the   force   used   in  robbery  must   be  used  to 
overcome   the  payer   of  protection,    and   the    interit  must  be   to 
codiiit    the    criiae    itself   or   some    crime  heinous   enough  to -supply 
imputed   intent-.      Larceny  from  the   person   is   where   goods   are    - 
taken  wl^idi   are    so    related  to   the   person  by  position  or  connel 
tioTi  as    to  be   said  to   be  -under  his   protection  ~  Regina  v   Sel- 
way.  -  --  •' 


(b)     Larceny   from  a  buildin 


o» 


COM/iOI^/ilALTH  v  HARTIIETT ,  p.  701,  By  a  statute  of  Mass., 
stealing  from  any  building  was  made  an  aggravated  offence,  and. 
deft,  took  chattels  from  a  building  in  the  day  time,  which 
build-irig  belonged  to  her  husbaJid,  HELD,  it  was  simple  lairceny 
only.  The  statutes  of  J.Iass.  enacted  the  statutes  of  England 
on  the  subject  of  larceny  from  a  building;  and  by  the  construe 
tion  og  the-£nglisli  courts  the  statutes  did  not  apply  to  steal 
ing  from  one 's  oim  house   or   to    a  wife's   stealing  fr-aax  the  houe 

129 


of  her  husband,   which   is  her   own;    and  the    adjud&ed   construc- 
tion of  the    tenns    of  th£   statute,  is    enacted  as  v/oll  as   the    • 
terms   themselves,,  v/hen  -an  act   passed   in  one   country   is   after- 
wards passed  by  ariotiiero 

The  law  as   to   construction  here   stated  is    cori-ectj    as  if 
lan£,ua&e    is    once   judiciaJ.i:-    intex^preted  and  is   afterwards 
adopted  elsev/here.^    ii   is   the    only    ri^ht   viey  to  held  thiat   tl^e 
laneuag,e  must   be  meant   to  have   that    interpretationo      For  a 
larceny  fi^om  a  buildin£,5,    the   g,oods   must   be   taken  under  usdi 
circumstarices    tliat   they    could  be    said  to  be   taJcen  fi^oui  the 
protection   of   the   buildinco 

e  J  4 

COjin.iOinV-L.ALTH ,    po  '703o        -Defto    arui  G  lodged  together  in  a 
room  in  the  house    of  IvU      Deft,   dui'ing,  the   nicjit    took  a  key 
froi.i  the  pocket    of   G  and  feloniously   opened   G's   ti-umk   and  tock 
out  money  o      G,   being  wakened,    saw   the   deft^    at   the    truiiks,   but 
did  not   icriov;   it  was   his.,      HELD,    it  was   larceny  frou  a  buiD^iirt 
To  constitute  larceny  from  a  dwellinr,  house   or  other  building 
the  property    stolen  must   be  under   the   protection  of  the  house' 
and  not  urider   the   eye   or  personal   care   of  someone    in  the  hous^ 
The  money    of   a   lodger   in  his    tnink,    the   .Way   to   Tjhicli    is   in  the 
pocket    of  his    clothes  while'  he    is    in  bed  and  asleepj,    is  u«ier 
the   protection  of  the   house o 

Beale   rather  'inclines   to  disagree  with  this   cage,    althoug 
it    is   probably   laWo      The  building   is  a  protection  against   thoB 
outside,   but  here    is   seems   that  the  trunk  was   relied  on  agains 
those    inside,   while  the'  bilding  was    relied  on  to   protect    the 
goods    against    outsiders..      If  the   lodger  h^d  put   the  key  under 
his  pillow  J,    it  would  have   oeen  larceny   from  the  personj,  'fir   it 
ooiild  be   said  the  key  was  urider  his  personal  proteetiono- 
Strictly   speaking,    the   prime    in  tliis  case,    if  anythin^is,    is 
larceny   from  a   trunk,   and  this    is    not   provide      for„ 

COl.OAON'VBALTH  v  'LES'"£R,   p*    705.        Indictment    for  larceny 
in  a   buildingo      Dei't^  went    into   a   jewe3.er^B   shop,    arid  havirc 
asked  to    see   some   vmi'ches  was  iiarided  scmej    and  when  tlie  owr^r 
turricd  arourid  tl-ie   deft  <»   took  themo     HELD,    if   the  watches  were 
upon  the   show-case  when  stolen,    it  would  be  doubtful  whether 
they   could  be    said  to   be   urjder  the   p rot e ctri on  of  tlie   building 
rather  than   iix  the   possession   of   the    ownero      If   they  '^'ersR  put 
into   the   deft^So  harjds    by    the   act  of  the   owner,,    and  were  thsre 
when  stolen 3    tl-iey   did  not   derive   their  protection  from  a  buil- 
ding;   as  'the    evidence    is   conflicting  convict xcn  cannot  be 
penaittedo 

Beale   says    it  wou3.d  be   a  necessary   conclusion  from  the 
facts  here   that   in  neither  -sorixiition  v/as   the   protection  of    the 
buildirc    relied   on,  as   ordiriarjly  the   protection  cf  a  buil- 
ding is  not    i.^elied  on  a'gainst  those  v/ho   come    into  a  3b.op  by 
invitation  of  the   owner « 

130 


.xt 


SOlfelARY,;        Lart'jeny  from  a  building  tal<es   pia^.e  vhen  eoodfl 
are   t.aJ^en  from  the   protection  of  the   building  arui  by   one   ag- 
ainst ViThom  the   building,   is   Buppceed  to  prctect;    so    a  Fife 
canriot  be   guilty  of  -larcen:    from  her  iiusbarid.'' s  building  •■■   Cocr- 
monv;eal'.ax  v  Hartnefcto      In  Masso    it    is  held  that  \7here  one 
boarder  stole   from  a   trani?    in  a   room  with  his   felio'sy  lodger   , 
it  was   larceny  £rcai  a  building  -  GoLiLiorjii.''slatli   v  SiviithJ    Beale- 
disagrses  arui  ttiinJ^s   a  building -is   a  pro'ceetion  ojly   against 
outsiders;    so  a  building  woiild  not   be    a   protection  agai.nst 
those   (roming  in  to    trade   «■  Coi/iiionvealth  v  Leslie « 


CHAPTER      F0UR7££!I  c         £KIBEZZL£r  ISH' . 

iinbezzlenient    is   a    gro'Jth  f  roi-i  'olossly   related  statutes 
going  batJc    to    the    ti;.ie    of   flenry  Stl-,      TliG   time   when   suoh  a 
statute   became    iiiipoi*t.ant  v/as   after  Eazeiey^s  -ea-ss   ^rhen  goods 
ta.l?en  by  a   servant   v/as  h&ld  not   to   be.   larceriyo      The   first 
step  was  t.hat.   all  goodi5    taJcen  by   a   sei'varit  Mh^ri   they  had  come 
int-o   bis  poDsession  for  his  .-aasterj,   "sras   marl&   ^srixniimlS    it   vas 
then   extended  to    'jarriers.   and  now   It   is   embezzlement   for  any- 
one v^xO  has   possession  for  arjiathern    to    take   the   goods,  -and  it- 
is   even  extended  to    the    case    of  trustees  who  have    title <,      Em- 
be  z-jsleioent    grows   cut   of   larceny  and  is    subject    to   a.l?>.  the  prin 
ciples    o-i    2.a.r>eeny   csorisi  stent  with   the    statute    in  axiy  particu- 
lar oas  e  o 

R£X  V  H£.\DG£,    po    706  <>        X   in  order  to   detect   the  deft^j 
a   servant p-  gave  U  some  money    to   go    to   X^s    shop  arid  pui'chase. 
some   goo^ii!,      Defto  'took   the  money  and  kept    it  without  deposi- 
ting   it    t-n   tl'ie   tilXo      The   defto   contrnded  that   the   statute  a  a 
to  embezzlement   did  not   apply   to   eases  v/here    the    gooils   were 
in  the  master'-s  possession  before  beirig   deiif-^red  to   zh.e    ser« 
vanto     H.'];lDj    it  was    eanbezzlement ,   and   so    a   CcnixaOi-i  Law    indict- 
ment  for  larceny  could  not  have  been   aippoi'tod.     Embezzlement 
and  larceny  tio   not    overlap  and  so    the    emrreszleiient    statutes 
apply  orJ.y  to  oases  which  are  not   larceny j 

PSCtJNA  V   CULLUivIs    Po    V07o        Indictment   for   embe^.zlement 
under  a   statute   according  to   whidi    it  ?/as    embezzlement   if  a 
servant    took   that  v^^id^  vas    delivered  into  his  posses^'ion. 
"fo-r   or   in  the   name    or  on  the  account   of   the  master -or  employ- 
er*'„      Deft,  was    employed  as  the   captain  of   the   ba.'ge   of  Xj   to- 
takiv  and  receive  oK.ly   such  cargoes  as    tie  master  dtreotedy 
defto    baing  entitled  to    a  ^art    of'  the   earrijn.gs   arid  being  under 
a  duty    to  asf^ovint    thejfeforo      Defto,   being  expressly  forbidden 
to   take   a  certain  load  on  a  retimi-load     trip;,    did  so  siid  took 
the  whole   of    the  money   so    eamedo     llELDj    it  v/as  not   ecaI->@-J:-,2-le" 
nento     Thsre  was    oiily  an  improper  us^  of   the  naster-'S    chattels- 
and  the  money   was    not  Teceived  for  or  on     a»seount   of  or  in 
the   Yia.a's    of  the  db.  stero 

131 


If  the   eervarit,   despite   orders,   acted  for  his  master,'  it 
vould  have   been  embexz'lement ,    but  here   from  the  start   deft, 
was   acting  for  himself »      There  was   also   nxj  laroeny   of  the   boat 
LS  there  wos    only   a  temporary  takin^^  posseBstori, 

REGINA  V  BA'^TES,   p»    710,        Deft,  made  an  assicnmeni;   fbr 
the   benefit   of  his   creditorn,   arid   after  execution  he  received 
i.   sui..8   of  iiioricy   on  accourit   of  debts  previously  due  him,   arid  he 
did  not    tuiTi   tiiese  luoneys   over  to    the   assiyiees*     HELD,    it   was 
not   embezzlexiiSini;    the  money   as    soon  as    received  was  his  oun 
erd.  he   had   a  ri£;*t   to  receive    it,    nor  was   he   a   clerj?   or   sar— 
vant   of  the  assiyiees. 

As  a  matter  of  law  the   deft,    did     hare  a  le£;al   title   to 
claiiijsand  having,   tilte   to    the    claims  he  was   entitled  to    tl~e 
money   collected;   he  v;as   a    sort    of   trustee   for  a   trustee,   ani 
a*  the  time    of  taljin^,  he  'ffs^s    entitled  to    it,   but   only   in  trrifft 
This    is    thfi  kind   of  jSrabezzlement   pujiished  by   statute   as  to 
trustees,   bu?t    it    is    not    covered  by  any  ordinary  statute   of 
embezzlement  <, 

COIvUJOirfilALTH  V  HAYS,   p.    711,        Deft,    presented  his  depo- 
sit  book  at   a  bank  arxi  the    cashier  balericed  tl»e   book   and  paid 
ovei*  the   balance    ,    giving  tlie   deft,   .'1^100.    toom  much.      The 
B''.atute   provided  that    if  ariy  per-son  to  whom  money    or  £,oods 
were  delivered,    should  embezzle   the    same,  he    ^ould  be  deemed 
to  have   comciitted  larceny,      HELD,   the   deft,  \ja.G  not   £;uilty 
ujider  the- statute  as    there    is   no  breach  of  trus^;  when  property 
delivered  by  mistake    is  appropriated.     The  point  here   is  that 
the  d&ft.,  was  -not   entrusted  v7ith  any  money,   and  the  case   is 
opposed  to  Middleton'?   case,  -  -  - 

COmiOITWSALTH  v  BERRY,    p,    714 »        Deft,,   employed  as   a  ser- 
vant,  was   requested  by  one  member  of  a  fi-na   to    take    some  money 
to  another  5   ard  he   appro  pi*iated  tha  moriey ,     HELD,    it  was  lar- 
ceny  and  not    embezzlement,         ...  .  .        , 

It  was    not   embezzlement  but  larceny  because  the  money   was 
eiven  by  a  iraster  to  aservarit   and  so  tlie   posseesion  did  not 
pass,  -  ... 

COLGdOIATEALTH  v  POSTERS    p,    715.        L  delivered   to    the   d;eft'. 
2  of  his    o*iii.  prcaaissory  notes   to    sell   arid  to    deliver  the  pro 
ceods  to  X,    charging,  a   commission,    ard.  deft,    sold   the  notes  ad 
used  the  proceeds,     HELD,    it    is  far  the  jm-y  to  de^id^  from  Xb. 
facts    oi*  the  ea^o  whethei?  the  deft,  was  employed  as   a  broker  - 
to   sell  the-noteo    in  the  course  of     is   business  arid  to  mix- 
th<e  proceeds  with  his  o'sa,  dn  which     case   it    couls    not  be   em- 
bezzlement;   but    if  tlie-deft,  was   employed  merely   to   sell,   th« 
notes  -and  to    pay   ov^Trthe  specif ie-praceeds   to  X,  he  would  be 
guiltyo  .  ... 

This   ease   turns   on  a  question  of  fact,  which  depends    on 

132 


the  law   of     agency*      If  the  deft's.   business  here  was  to  dsal 
in  notes   arid  he   received  the  jcaoney   in  the    course    of  his   busi- 
nesBj   he    is   only  sonsidered  a  debtor  to  'the   owTier*  of  tie    notes 
and   if  he    is   a  debtor  ha   cartLOt   embezzle.      But   the   ordinary 
man  who  collects  money    in  this  way   outside    of  his  business  'can 
not  mix  the   pi^oceeds  with  his    own  and  uiake  himself  a  debtor, 

PEOPLE  V  HURST,    p,    716,        S   gave   to   deft^    sane  money  -to 
invest   arai  the  deft,   used   it  himself*      On   inquii-y   the   defto 
admitted  the   use,   gave  partial  payment,   and  at  various   times 
promised  to  pay  all.     K£LD,    it   was   r/ot    embezzlement,    for   it 
must   distinctly  appear   that  the  deft,   acted  with  felonious 
intent   ar»i  luide    an   intentional  wrori{^  disposal   iridi eating  a  de— 
sigTi   to   cheat    the    owner,    or  tiiere    is   no  embezzlement  o 

JEmbezzlement    being  an  estention  of  larceny,  'the    sane   prin 
ciples   apply   except   as    to  the  point   of  possessiono      So   if 
thp.re    is    an    intent-  to    take   for   a   temporary   purpose   only  there 
is   no   embexxlem'ent ,      JEiaibexxlement  applies   only    to   cases  ^'iiidi 
are   not   larceny.      It    is   generally  held  that    for   embezzlement 
the    coo^   must   be    obtained  by  virtue   of   ths   eirployemnt,    and 
•v7hen>    contrary  to   orders,    a   servant   carried  a   cargo  yith  his 
masters   boat,    it  was  held  not    to   be   embezzlernert   -  Regina   v 
Culluino      jEmbezzlement    is   properly  a  b-reach    of  trust    on  the 
part    of   one  v/ho   lias   possession,    and  vriiere   one  has    ''.itle  arid 
violates  his   duty,    ti-.ere    Just    be  a   special  statute   to   hoii 
1-iim  -  Regiria  v  Barries,     A  servant   ^arirAOt   embezzle,    but  must 
Btea3.'j    if  goods   are   given  him  by  his  master   -  Goiiraonsyea   th  v 
Berry,      A  servant    cannot   embezzle    if  he  has    orily  the    intent    to 
take   for  a  tanporary  pusrpose;    ard  the   sanB   principle  applies 
in   embezzlement   as    iri  larceny    in  almost   every   case   except   that 
embezzlement  deals  with   goods   aftei*  possession  is   taken  - 
People  V  Hurst  0    If  an  agent  has    a   riglat   to  mix  proceeds   taken 
with  his   owri,  he    is   a  debtor;    while   if  lie   holds    the   proceeds 
for  Ids   priricipal  he   is   an  embezzler;    Goiiimonwealth  v  Postero 


GHAPTSn  TKR££.        THE   ItroiCTAIElT?  , 
SECTION  ONE,      GENERAL  REQUISITES   OF  AN   INDICTMENT 


/ 


STATE  V  BHOVm,   p,   19,        The    indictment  alleged  th.at   dfift. 
v/as   a   cocmon  sabbath  breaker  and  on  a   cer*tain  day  kept   open  a 
shop   and   soli    go-ods   to   negroes   arid   others.      HELD,    judgement 
must   be   arrested.      The    court  must,   upon  an  inspection  of  the 
record,   perceive  the    criminal  -act,   ard    if   the  act    can  be  pre- 
sumed to   be    lawful,    it  will  be.      Here   it   was   possible   to    pre- 
stime   that   the'  sales  were  made  to   those  to   \Aioai  it  was    rjot    a    • 
crjme  to    sell, 

A  criminal  act    is   not  here   described  as    it    is  not  alvrays 

133 


a   crdme  to   sell  on  Sunday  and  this   is  all    that   i^:   alleged 
here>,      /ill   elements   of  a   eriuinal   act  must    then  be   set  out   biat 
any  matter   of  excuse   or  defence/- sueh  as    insanity,   noed  not 
be   set   out   nej^atively  in  advartceo      Notl-xin£,  will  take  -the  plaoe 
of   the  nec:eBsary  al3.e£,ation  of  fact,    not   even  a  £:ener*al  stat^- 
msnt,  <, 

nAIiOW'S  CASE,   Pc    2Co        Deft-,  was    iridieted  in  1829   in  Me/, 
for  thaty   ha.vinL  been  urilaT;rfu2.1y  married   in  1S05  at   T^  in  Ma&«« 
he  was  ijjrJ.a"™rf'u].ly  rsinarried  at  P   in  1812   in  Me«  a£^ijri0t    tlie 
peace   of  said  etate   and -the  forru  of   the  eta  tute.     HtSTiT),    the 
indie  :rrient.   aas   defeetlv*eo     The   o££en«e  vas    ttoaamitted  in -1312 
vhen  t:.-e    laws   of  Masso  had  jurisdiction  over  tl-ie   place   arJ. 
when  Me  o  was   not   a  stat/e^   arid   it    eould  not  now  be   diarg;ed  as 
a^airist  a   statute   of  Me  o     7?hoever  eoiiEiits  ari  offence   indict- 
able by  lav7   or  statute    is   c^ilty   of  a  breach  of  tliG   peace   qS 
t:at  \o-^ex^iUiQyi'%  v/hich-has    jurisdiction  for   tlie  time   bein^,   over 
tha.  place  J   ard.   tJie   failure   to    set   fortii   in  the    iridic txaent   that 
whidi- ■was -done   a^^ains 'u  the  poliiic   of   the   eovemnent,    is   fatal. 

Here  the  er-Tix.e  ■yas  coociitted  agjainst  Mass*  arid  so  lont  as 
no  statute  vas  pa&sed  in  I.Ieo  clian£,ing  the  <;rL'-:ie ,  it  woxild  b©  a 
crixoft   atvainsT  llasso      It  Tyouls-  still  be   charged  as  a£?iinst  l.lass 

if  a  statute  vas   pas  sad  in  Me«   setting  a  penalty  but   not 

changing  the.   ci*ii-"ie  o 

COI.3.:o:TVi]ALTH  V  PRAY,    p.,   22,        The   deft,   was   iridicted  on  a 
statute   ai'ii  the    indictuent    contained  2   charges,   the   first  al- 
leginc,   in  general   term^,    that    *   the   deft,    at   Braintrice   pre—- 
Bucied  to  be   an     v/as    a   ooiiLiOn  seller®^  'usirig   tl^s   words   of   the 
statute;    tlie    second  alleging,   tl-^t   d&ft»   at    said  V^eyiuouth  did 
eoLiinonly   sell    to  persons   urikriown  etc     The   deft,    contended 
that   the   indictment    sliould  set   forth  particular   facta-  arid  also 
that    the   seccnd  allegatdon  vas   repu-yiarit   to    the    f  ii^t,     HELD, 
tl'.e    indictnT&nt    vTas    good.,.      The.    general  rule    tiiat    particulars 
must   be      set   forth  has   exceptions    in  cases  wliere  the   orim-e  co* 
sists   of   a  series   of   aets^   ar^   in  suczi    it    is    tl:e    general   prac- 
tice  and  not    thv^   particiilar  a^sts  whicl^    cons   itvite   the    crime.    ^ 
The    second  allegation  is  defective  because    of   inconsisfceney 
of   the   venue,    bi.it    it  rnay   be    rejected  as   surplusage. 

There   are   a  few   except  iojal  cases   where   one    is   puriished 
fc:'-r'  being    so.mething   and  not   for  dojng   soinethirig,   and    the    inr- 
dir-tment   then  has    to   describe   hiin  as   being  and  not  as  doing- 
S0i.;ething5    a;.':.d  the    facts-  need  not   be   set    out.      The   3   reasons 
given  for  .-jertai.nty   on  po   25  are  all   good  but   not    of  the    same 
Inportant'.e  J    the    Be<.^.ond   is  riot    jjoapoi^-tant   arid   the    3r      is  not 
correct,,   as  a    sec-'ond.  conviction  uay  be   connected  v.'ith    tl:e  1st 
by  parol  evidence,     T^ifi   above   exception  to    the   coction  pririci— 
pie   that   one    is    to    purrished  only   for  v/hat  he   does  applies   to  > 
cases   of  nuisances   etc 

134 


HIRl^T  V   STATE,'  p»    25.        A  statute   piiiiished  the   sale    of' 
spirituous   piquors*      The   first    section  describinr   the  penal 
offence,  had  a:    iis    close   the    previso,    that   nothinr,  contained 
herein  shall  be   coristrueJ.   to  aiake    i-t  •  urilawful   to   sell  spirit- 
uous  liq'aors   for  x.iedicinal  purposes.      The    indictment   against- 
the  deftc   did  not    contain  a  ner:,ative  ave<ri.tLient   tl-^at   t.ie   li- 
quor  sold  'jas   not    for  nedicinal   purposes,      }I£LD,    defective,, 
VlhCYi  the   jatter   in  a  proviso   or   exception  enters    into  a  part 
of  the    description  of   the    offence    or   is   a  u.aterial   qualificar- 
tion  of   the  larjf^aaf^e  v;hic..   defines    itj    t.  e   nerative  allegation 
is   necessaryo      "'.ere    it    is   a   siibsequent    exception  or   occurs 
in  a   separate   arid  distinct    clause    dfisconiiected  vith   tlie    sta- 
tutory  offence,    it    is    not   necessary^      In  tl:e   case  at    bar  t.:« 
previso    is  'Li.e  njateria-.  qualification   in  the   description  of 
the    offence. 

The   favorite    tesi    is  v/het..er  the   exceptiori   is    in  tl.a    en^ 
actiri£   clause,    but    this    is  riOt    rood   although   perh-aps    t:.8    beGt> 
mechanical   test    for   findirif^   out  vh^t    the    crime    is,      7';e    oriiy 
test    is    that    all    tr:e    ele..ents    of    the  criuiB   inis'^  be   put.   in  and 
what  tl:»se  are  must    be   found   out   by   exaininat ion, 

COI.C.:ON?v'EAIjTH  v  EEP.RIGO,    p,    27,        The    indictmerit    diarced 
that  the   d.ef  t  o    suffered  certain  persoris    to   play   in  a     house 
or  on  premises    in  tcie    county-,    a    ;;^aine   of   cards   ab   irhich  money 
or  prop  er>ty  was   won  arid   losto      HELD,    it  was    defacti-ve    as    beir^ 
uncertaino      The    iridictu.01  -  must  'set.fortht    ehoffence   -with  such 
certairity  as   to   apprise   the  defto    of  the  rjature    of  the  accu- 
sation« 

This   is    a   clear  cas«  as  dert<-  does    not   l?now   wi^etl.er  he    is 
clTar£,ed  with   orie    or   two   crimes  <, 

U,    So   V  0?.UIK3I':AIJICs    p»    2S,        a  U,    S*    statute  provided   for  the 
punisiixVient   of  tJ^se  v/ho   conspired  to   injure    or  intimidate  any 
citizenj   with   the    intent   to  prevent  his   enjoyment-  of  any   rigjit 
granted -him  by    "che    coj-iSt  itution  -a^id   laws   of  ths  U,    S»        Tlie 
indictiuent    alleg^ed  tliat   the    defto   h^d  an    intent    to    pi-e-ven't 
certain  persons   the    enjoyment   of   every »   eachj'  all,   and  singu- 
lar the    several  rir>-^ts   arid  privile-^^es    granted,      HELDj    it  was  ■ 
defective  for  wartt   of   certainty   and  precisiono      All    rij-xts  are 
not   secured  as    given  and  whether  one    is   or  not   is   a   quest  ioj    - 
of  law  for  the  court.s,    arii  pai'ticulars    s..ould  be   alleged. 
Where   the   defiriition   of  ari   offence    iricludes   generic    terms,    it 
is   TiOt   sufficient    that   the    indictmsrit  d. arge   the    offence   in 
the    sane   generic  terms    as   the  d-efinition.    but    it  must   descend 
to  parti ciilars. 

There  was    no   statement    of  any  particular   ri^it   but    only 
of  a   class  to  which  th£  rigl^t  belonged.      It    is   rjot   usually - 
enoug}::   in   irtdicting  on  a   statute   to  use   th.e   la  riguage    of  the 
statute  whidi  lays  down  general   principles;    the   indictment -is 

135 


for  a  particular  act   arid  this  must    be    set    out, 

COLILIOiroEALTK   v  HARRINGTON,   p,    3ic         A   statute  provided 
tl.a  i   any  person  convicted  of  drurikoruriess   shovild  pay   a  fine   of 
one  dollai'o      It   also  provided   that  v/hen  sucli   pejrson  was   proven 
to  have   been    convicted  twiwe      before   for  a  like   offence  within 
a  year  Si  he   should  pay   a   fine   of  ten  dollars;    and  tliat   it 
should  not  be   necessary  fo-r  coi.iplaint'S  uiuier.tlie   act   to   allege 
sue;;  previous    convictions*      El.e  deft«   was    convicted  of  drunk— 
finriess   arjd   the  court    ruled   that    evidence   of  preceedin^;  coi'ivio- 
tions    should  be   ad.iitted,      HELD,    '.he   rulin;^  -jas    erroniouso      An 
offence  w.iich    is  puriisli&ble   with    a  hi^^.er  perialty  because    of 
fon.ier   convictions   it  not    subsianti  lly  described   if  tl-e 

coapjain';   fails    to   se^    out    the    previous   convictions,    "Jhi  di    are 
a  part    of  the    offence.      The   proviso   releivin^,  tlie  necessity 
of  such  an   alle£,ation  vra-s    void  as    beir%    contrary   to  the   deS? 
claration  of  ri^}±.s,  ^7hiCi-   requires   every   offence    to   be  de-r 
scribed  substantiallyo 

This   case    is   t,enerally  laviT,   althou£>,    tliere  are    soufi    cases  a— 
cainst    it;    if   ^ettinc,  drurik   a  thiivl  tii.ja    is      treatd  different- 
ly from   tl.  e   first,    i;    should  be   stated, 

STATE  V  IIACE,   p,    32,         Indictment   for  pur£,ury   "by   falsely 
swearing,   to  iViaterial  niatter      in  a  ■.vritiri;^  sic^ied  by  deft," 
HELD,    tl.e    indictnent    did   rrot   sufficiently  charge   facts   neces- 
sary to   constitute    a   crixne.      Perjury    is   only  v/here   one  who   ia 
required  to    tell    the    truth  on  oath,   wilfully   swears  falsedy   to 
a  uaterial  matter  in  a  pi-oceedin^,  before   a  le[jal   tribujial. 
Swearing   to  an  exti-a   judicial  affidavit    is    not   perjury,    and 
the    i-rtdict  i.ient   does   riot    state   enou^-,  facts    to   decide    the 
doubt  o 

This  and  the  preceadin£,  case    show  that   the    sufficiency 
Ox    the    indictment  has   been  provided  for  by   the  -constitution 
arui   carin.ot    be   done    away  witl.   by    the   lecisla  tiuce.      The   lef,is- 
lature    can  do  av:ay  witi;  the    require^aents   of  fon.^  but   not   of  - 
substance,    arid    ti.ese  'iast-  2   cases  v/ere     raatters   of    substance, 
STATE  V  LIcCARTY,    Po    3-io 

l-ndictmer/t    for  breaking  arid   enteririg  the   ho-cise    of  Jere- 
iial.  3.    Puller  0      The  nania   of    ihe    ov;ner  was    really   Jedediali  B, 
F  ller,-  arid  the   court    of   Cona:.ion  Pleas   allov/^ed  t-.e  wrii    to  be 
ai-ieridedo      HELD,    a   nev/   trial  laust   be    ^ranted.      The  ai.iendi.ient   to 
the    indictment   bein^,  a  uatter  of   substarice   covJ.d  only   be  n.ade^ 
in  the    preserice    of  arid  witi.  the  tsoncurrencc    of    the    Grand  Jury, 


n 


T:-.is  case  shoves  why  defects  iri  substance  are  fatal,  as  no 
one  has  the  pov;er  of  alteration  except  i.e  Grarid  Jury,  arid  the 
Petit   Jury  passess   on  the    indicti.«rit    as  found. 


SUi.LIARYn        Gertairi  v/ords   of  ai^    are  Tiecessary   in  tl:e   in- 
dictment;   for   instance,    f eloriiously ,      The    captioriuusi    show   an 
indictment   rer-ularly   fourid  by  a   Grand  Jury   and,    in  what    court 

136 


fouTid,    that   the   grand  -jorors  were    reg-ularly   summoned,   and  the 
place   of  the-ir   sitting.      Defects   in  fomi  are   as   fatal    as   those 
of   substance,      Tl.e    indictment  niust    be    certain;    all   the    ele- 
ments necessax-y  to  iaake  up   a   criminal   act   must    be    set  out     • 
fully   and  acurately,   bi;t  laatters   of  excuse   need  not   be.      An 
indictment    sho'uld  state"-  1,    the   ri^iht    of  the    state   not   to 
have   a   thirty,   done,    "a^^ainst   the   peace    of  the  state*;    this   is 
matter  of   form;    or   s or.ie t L-.e s   the   ri^^t  of  an    individual   as   in 
larceny,   when  t..e   above   general   s'tatement   as    to    the  peace   of 
the   state  would  not   be    stiff icient.      2,    the    criiuinal   act,    and 
this    is  nmtter   of   substance;    the    orily   exception  to   tha  neceo** 
city   of  setting   out   facts    is  where    it    is   a   crime    to  be   some— • 
thing   arid  not   to   do   soniet.^ing,    as    in   th.e    case    of   a  'Cojm^oii  sel- 
ler c      3,    t..e   state   of  mind,   v/hich   is  i-iatter   of  form,      4,    if 
tiie    criixie    is   statutory,    it  must   be    alleged  to  be    "against    the 
fomi  of   the   statute".      The  mechanical   i^st   as   to  vhether  an 
exception  in  the    st^ftute  must    be   put    in  tl-e    iruiictment,    is, 
whether   the   exception  is    in  the    enacting  'Clause;    but    this  lyas 
seen  not   to  the    true   test    in  Firn  v   State,      It  -is   not    general- 
ly  enour;.    to   follow   the   language    of   the  statute.      The   leadir»g « 
principle    in    this    section   is    that    a   crime    must    clearly  t^i  pear 
and  all      tl-.e    riecessary   elements  must    be    stated,    because  the 
Grand  and   the   Petit    Juries  must    kriov    they  are   acting  on  the 
sai/ie   charge. 


SECT  ion  TWO,         STATi2.I£NT   OF  THE   CRIl.Iii. 

1£X  V  LEDG-lirHAI.i,    p,    56.         Infonnation   that   deft,,    lord 
of  a  martor,  made   urireas onab le  distres-sess   upon  certain  of  his 
teriants   and  -so  was    a  coiuaon   oppi-essor,      HELD,    the    iridictment 
was    riOt    good,      Comii.on  oppressor   is    too   general  ani   su-cii   gener- 
al v/ords   except    in  tlie    case    of  a   barrator   is    noi   good.      Also    ■ 
taking  distresses    is   a  private  matter   regulated  by  statute. 

This    is   lai'gely   as   substantive   Jaw  arid  riot    of  pleading, 
tho'jgh    it    gerjera.-ly    comes-  up    in   tl:is  way.      There    is    no   crime  of 
being  a   couaon  oppressor, 

COI.U,iOir.?EALTH   v  NE7JBURYP0RT   BRIDGE,    p.    37,         Indie  imerA 
stated  that  X  et   al  were    incorporated  by   the   naiae    of    the  pro- 
prietors  of  t.-e   Mewburyport   Bridge,    arid  by   the    incorporatirjg  • 
statute    it  was    eracted   th^at   there    sl:ould  be   a  draw   38  feet 
wide'  arid   a   suitable   pier   on  eacl.    side   at   the    di^w,    but   that. 
deft,  had  neglected  -to    provide    such  a  pier,      HELD,    the   indict— 
raerit  must   be   quashed.      It   does   not   appear   except   by   infei'eriOQ' 
th^t    a   bridge  had   been  built ,    arid   irif  erencos    canriot   be  mads    in 
criminal   cases o 

This    iridic i..icnt   miglit   be    true    if   the   bridge  was    not'  thare 
arid  so   there    is    riotl:  irig   here,  i  neons  is  terit   v;i  ih  irinocence ,      If 
any  necessary  allegation  had  been   incorisi stent  wiTih   tiie  bridge 
beirig   there,    it  would  have  heeri   good,    but   there   cari  be  no  in- 

137 


r:-~r 


ferences    cari  be   drav;j^  iri  cri..iinal    cases, 

GOr.i:.:Orn'/i:ALTH  v  beau,    p,    3S,        A  3t;atute   provided  for   tlie 
punisliUient    oi'  any  pci'son  ^fho   slioul'd  iiialiciously  bi^eak    c_>ass 
in  any  building,  no'i   his   ov;n,      DeTb  ,   v/as    indicted  on  an  averr— 
laent    that    r/a  malicioucly   broke   2  panes    of  £,lass    in  a  building, 
noi  his   own,      I-IjBLD,    the    indictLient   vras    defective  because'  it 
did  noii   allei^e    t.I:st    the    j^ass  was    a  part    of  the  buildLngo      Al- 
thou^.    ihe   v/ords   of  t:.c    statute  vera   used,    still,    the   court    in 
as  ceriiainin(_^    ir. 3  ofects    co;.iuitied   carinot   lool;  beyonii    she    'w»  rds 
of   the    irj-ictijaent ,      The    statuie,    as   s--0".7n  by   the   contaxt,   was 
intended   io  pjiiisl.    h.e   break i/ij_   of   -^las  s  whicl.  '^'as    a   part   of 
a  b^ildin-.,    and    She   indictiuent    refer    '.o   £^lasG   not    a  part    of 
one, 

'Ve    sav;    it    is   not   enou  ■•-    to   follow   t-.fi    'arords    of   the  stat- 
utsif   tlie;/    do   not    conclusivoly  s  iate   a   crime.      If  a   statute    ■ 
is   not    clear   t..e    court    can  interpret    it^   bub   ari    i-ndi c tme nt    can 
no-    be    interpreted  and  uust    ba^    tsken  as    i;.    sV^rals* 

STATE  V   PkUSSELL,    p.    39,        I.'ELD,    an  indie ti-.'ient    diarrriri^ 
one  wih.   beiji,^  a  coi-uiion  ^ij^it   v/alker   is    too^>  v/iihout   allec^ing; 
particular   acts,    as    the    phrase   has    a  technical  ..iearxini   in 
law,    and    hie    offence    corisists   not    of  particular  -jicts   bu'i;    of   a 
habitual  practice,    evidenced  by  a   sei'-ies    of    acts. 

The  habit  of  i.oin.;^  around  by  ni  ht  was  considered  detri- 
LiSi-ital  and  has  a  ptsculiar  restricted  „£ai'iinr,;  so  V..e  v/ord  de- 
Biyrxates   a   cruae. 

3o  it  is  seen  inderences  are  not  ..lla^-ed  in  criiiiinal  ca- 
ses, and  all  tiie  essential  alle-.ations  raust  b3  inconsistent  < 
vith    innocence. 


SLCIOh   THREil.      PA:^.TICU11A.R  AILEC-ATIOIIS, 

( a  )     ITaaie  . 

Rill^r  V      -  -   ~   ,    p.    10.        Deft,   was   iridic  ted  by  -the   djs^rip 
tion  of  a  person -whose    naiiie  was    to   tl.e   jury  urijinown.      Deft, 
when  appreherided  refused  to    r^ive   any  narae   and  after  the   i-ndict 
went   pleaded  Yiot   t'^ilty,    but    refused   to  plead  by  any  name. 
HELD,    the  deft,  uigi-t    be    indicted  as    a  person  whose   nai^ao  was 
urdtnown  bui  who  was  personally   brou£;:t   before    :he   j  ur:.-  by  the 
keeper   of  the  p>rison.      Deft,   was    thereupon  convicted  upon  a 
new   iridic t/rrient , 

Giving  a  naiue    is    the   ordinary  way  of  pointing  out   a  loan 
as    the   one   broUt,2it   before   the    Grarid  Jury  arid  d-^rged  by   them     • 
with   ari   offence  for    the   Petit    Jury  'to  try,    but   any  oth.er  good 
Liethod  besides    the  name  uay    be   used,      I'owever,    this   latter 
course   caririot   be  pursued  unless   the    Grand  Jury  really   does  tiot 

13S 


kno-.v   the   name  ^    and  also    if   the    jury  r-iij;J-it  have  foiOTiJ.  out   by 
i-eaBoriable  means   there  would  be   Tals-ity   in  tha  bill    if   no 
naije  v,ras   sta1;edo      Therefore    the   deft.    shorJ.d  be   alloi/ed  to 
take   advaiitaf,e   of  the   fault    in   substance   as   cy£   course    the    in- 
dictment  is    coi-x-ect    iri  fon.i  on  the    face    of    itj 


/ 


REGINA  V   .Jf'::.EP,y    pc   41^        '^he    indictjiien';    charr^ed  the   deft, 
witl'i   stealing.,   2  rin^s,    the    piX>r.erty   of   Jp.les  I'enry   Sbeiner-Q 
The  proparty  '.vas  really    owned  by  a  person  "K\oze  nr-^ie  was  Henry- 
Jules   Sieineis      ;-Ti]LD,    >;-.e  ...iG;i.a..ei'   is   fatal, 

"lie  nSiiie    is  here   part    of   t..e   descriptio-'i   of  the  pi'operty 
arvl    ihe   proporiy  proven   is  no';    shat   alio  , -3d  to  be    stolen,    arid 
BO    u..&re    is    a  real   va-ianccc      But    in  case  of   t/.e   deft's   nacie 
there    is   ri.o   variance    if  his    nszie    is    different ,    for  his  nccae    is 
not  a  part    of  t..e    description  as   all   th^t    is  wanted  is    to   id-* 
entify   the    r-risoner  v;it.'.-.    tl.e  liiari  before    t;.e    Grand  Ju^Vj    and    ' 
wh£ii.  ..0    is   at  bar  he    can  be    iden'jified  withov. t   a  naiiiea      Ariy 
nai.;e    tiien  tl:at    is   a   part    of   the    description  of   the   offence 
liiust    be    correct,   and  if  ri.o~.    there    is   a  variance   which,  nust 
lead   to   acqi'.it  ial  3, 

TICGIMA  V  'iTlLSOil,   p.   41,        De'f t ,   was    indicted  for  forr,iri£ 
an   order  for    the   payr-ient    of  laoney.      The    order  as   set   out   in 
the    inaictinent  was    John  i'c'Iicole,    bu:    ;  _ii    riai^e    proven  was  I.ic- 
Nicoll,      I-£LD,    there  v/as   no  variance,   as    i..e   only   question  is 
whether  tiie    court    can   say    thai    the   2  riai.jes   are    so  identical    in 
s.jUTid    tls<.t    a  person   could   not    be  r.;isled. 

This    is  a    /elic  of    ih^e    tL.ie   xuiqyi   t-.e   pleadin'^  was   oral, 
and   i.-eoretically    the   deft,    ;:,ets  knowle'dv_e    of   that  v;ioh  liiich 
ho    is    charj;;^ed  by   so  an     and  not   by   sij.-xti 

^GlhA  V   DAVIS,    p.    42,         Deft,    was    indicted   for    stealing 
t..a    £,oous_o.    Darius    Chris  top-.Gr,    but    tl.e    nax.B   was   proven   to    be 
Tryus   .nris.opher,      -..e    chaiiiuan  ruled  tha:    in  Dorsetshire, 
Darxu.   and  Triu^  we:.e    idai.  sonantia,    but    the  -question  ^as  Aot 
^o^w.e    jL.ry,      yi:LD,    t  .ere   was    a   variance. 
This   case    si.ovs    t.-^t    idei;.  sonantia    is   a   question  for   tiae 
jui-y   iirU    t:^:    except    ir.  a  plain   case    the    court   canno.   decide^ 
on  1 G  3 

GOLhOh-;£ALT::   v  pi:   -:i::s,    p,    .s.        Deft,    was    ir^ictad  by 
t..e   .a..e   01    T..o.:as   Perkins,    but   his    full  narne  was    T:.on;as  .-op- 
kins   Perkins,      r£LD,    the    indictraent   was    bad  as    t  .e   rir^.t 
C.-.ristian  naix.e  ..vast   be    ^iven. 

h-!.    .C^o^^''"'"^:^  ""^    "-■''   ^''^'''    ^^"'^^^"^    ''^^   t^-'-'en  advantage   of  by 
t^^'t    i    -'^^^   ^^^^'    '°    '^'^    indictraent,    as    then  he  has    said 
t.^t  he    is  nou    guilty   of  the    cringe   described;    th.e   orxly   qu^- 
tion   IS   wi;ether  he    is   guilty  by  wl^atever  narae  he    is   called,. 

139 


3UI.II.1ARY.        The   n:iine   of   the  deft,    is   the   ordinary  raeanc  of 
ideritif ication,    but    another  and  efficient  x.ieans    is   g,ood,   and  a 
person  may  be    irxdic-ted  as    "one    to    ihe   jury  unknown",    if  he   is 
brou{^:t  before   thdnii,      Biit    if  t].e   jury  kno'.Ts   or  miLl-t  hare 
found  out   the   na.  .e ,    the  urit  u^ai'    be   abated  for  unknovm  luoans  , 
not    the   be  discoverod  at    t;:e   laoiiiOnt   by  reasonable  uieariS  o      A 
naivie  w..ic..    is   a  necessai'y  part    of  a   crii.ie   or  which   is   a  pai^ 
of    ihe   necessary   descx-iption,  must   be   put    in  correctly   —  Re»- 
£,iiia  V  Jaues.      Ari  or.Muission  \7..ich  still  leaves    'ihe  naiiie    idem 
sonantia  does   no',  de'avroy    the    indi'Cti;\ent ,   but    '*xis   is  a   ques- 
tion for  thxC    jury  -  Re;:,ina  v  Davis «      The  nai.ic   of    ':he   deftg    i3 
no  i   a  part    cf    ;:ht   descripi/ioji   oi'  t..e   offe.nce   but    is   oni:.    for 
identification  and  so't..e    error   of  aji   o.^u.iissioii  is  not   fatal, 
A  iiiisnomtr  of  the    defto    can  be    talren  advarita^.    of  onl:    by  a 
plea  -in  abai;Oi.ient ,    a/id  after  he   pleads   to    t.o    indictafint   i  -   is 
cured,      A  i.iisnouer   in  the   description  of  a   cri:..e   or  of  ^oois 
is   faial  even  on  a  p..ea   in  bar.      Deft,    carino'.   plead  his   o'jti 
riaiiie    in  a b a ^ era e nt  .j 

(b  )     7L..2   a.' id  place, 

SIR  ]l£^n^f  yAhi;'S   CASE,   p,   44.        Sir  Henry  ^^as   indicted' 
for  treason  arjd  t.  e    iiiue   of  t..e    act  vras  allet.e-d  to  be  Jiay  30 • 
Ke  was   foiLTid  ^,uilt-   of    '-reaso.i  l.owsver,    on  Jan,    30.      TilLD,    the 
day  laid-  was    ii.jx-xitorial  a/Ki  he  ...i^.t    be    fourid  ^.uilty   oti  ano** 
ti.er  day  . 

T.xC   case    is   correct   o.iA   it    is    t  e    sa'ue    as   pleadin-:,  nuuber 
or   tirae    in  an--  pleading,, 

RiiX  V  1IAP?£P.,    p.   44c         Indictirient      alle-^ad    ihat    the   deft. 

at   Liverpool   st-ole   ^oo^s   of  X   in  the  dvcllin-  house    of  Y,   theri 

and  there   bein^,,      riELD,    t-.e   indictment   sho-.-/s    s;if f iciently    ihat 

the  ho^ise  was    at,    Liverpool,    and  the  words    "tr.ere   sit-aaie"   need 

not  be  used. 

SOixiO   stateaxiOnt    of  place    is   necessary   aiid   the   exac;  house 
described  xuust    be   adhered    iOj   but    zhere    is    on  t..e  w.xole   a   siif- 
ficient   olescripiion  of    i..e    ..ouse,      The   place   is    l-ipor^ant   as  a 
part    of  t/.e  description  ard.  must   be    proved  as    s-ated,    or  otl-isr 
wise  there    is   a   variance, 

STA-'ii  V  Sinn'ON,    p.    45.         Indictnien:   for  assault  vi  ih  in^ 
tent   to  kill.      The   bi...l   -w^s   found  in  I.;arc*x  1324  arid   c.iir£,ed    « 
the    offence    -o  have   been  co.  fitted  in  Au^*   1024,      HELD,    tlie 
indictment  was   defective,      1;  :.-iUst   state   t..e    offence  was    com- 
mitted on  a  specific   day  arid  year  but,    except   -./i.ere    the    tine  ^ 
enters    irito   the   riature    of   the    ofTence ,    t    e   precise   day   or  year 
need  not    be  proven;    l.ov/ever,    if  t-.e    offeriCe    is    laid  on  ari    iij- 
possible  or  future  day,    it    is  as    fatal   as    if  no   ti^ie   iiad  been 
inserted. 

The   ijdictmerit  must    state   a  tii.-:e  ■a.-id  that  must   be  a  poss- 
ible  tt4ie    or  else   norie    is   real_y   sta'^ed, 

1^  r 


STATJ5  -v  SMITH,   po   4Go        Deft,,   vras   indicted  for  disturbing 
a  meetirig   in  a    cei-tain  hundred   of  tiie    cociety   of  Methodir/tEc 
HELD,    the    indj.ctrnent   vac   Dtif f ieiently   certain  as   to  pLaco^, 
Place  or  tLue,   urJ.ecs    it    enters    into   the    eriine,    is    rio':   aatei*- 
ial  to  be   stated  or  proverio      The  pj.ace   need  not   be   sp Jdf i-'iai— 
ly  laid  to   £,uard  against   anot.^er  trial,    for  the   identity  of    '« 
tv/o   cases    on  a  p3.ea  of  forn-jer  acquittal^    is   tried,  by    ihe   jury^. 

COl.i;0'TvV.eAIiTI'  v  TOLLIVERj    po    40 o        Indicjttient   for  an  as- 
sault   on  X  at  Eost-on^   but   evidence  var.   admitted   to  proove   an 
assault   at    Chelsea,.      HELD^    ti:ie    evidence  -pou  d  be   admitted,    as 
a3i    that  nfic<i  be    siiown   is    that    bhe    offence   ./as    co;.ciit  bed  at 
any  plaoe   vi;-.hin  the    courity,    and  place    ir/  iinraaterial  except 
where    it    is   a  ixatter   af   local   description,. 

All  that    is   necessary    is    that   tiiere   be   a   place    -t'it    cut 
witliin  t„e    jurisdiction  of   the    court o 

OOlV.OinEALTd  V  TRAVERSE,    p,   47  „        The   couipiaint    ch^ar^red 
the   deft,   \7ith  boinj;,  a    ootL¥-.on   seller   on  t    e    tliird  day    of  April 
within  G  months   last   paste      Ho   evidence  "jas   offered  of   sale   on 
April   3rii>    bat    of   calus  Liads    at    times  wj.tiiinr,  6  months   befoiM3 
tl-;at   date,      r;£LD,    the   evidence    should  not   r^.vo  been  aJj.iittedo 
VHxere   the    offence    consists   of   a   sinj^le   act    time    is   not  mater- 
ial..    bub  "Where    it    consists    of   a   sex'ies    of  distinct   acts,    time 
is  rriateriolo      The  usual  2Vx«actico    is    to  allege   t-.e    crime    to 
have   been  caimitbod  ou  a   certain  day   and  on  divers   days   be-- 
tv/eeri  that    ^-Jay   EUxd  arxother  riarx-d;    this   £,ives   la    itude   to    the 
prosecution  J   but   the    tine    t-.us   fixed  canciOt   be  departed  fromo 
As    there   v/cu:    no   connecting  word  betv;een  t.e   aller^abion  of 
April   3rd  aiid   that    of  wit. .in   the  6  monbhs-  last    pasb^    the   evi~ 
dence  must    be   confined  to   ti.e    da;   alle(;,ed„ 

In  an  offence  with  a    cent inue/jdo   or   m  any   crl-ie  '.vhich 
may   be    coritinuous,   tiie   rulv:    is    tlir, t   any   occasions  vrithin  the 
limits   alls .r,ed  may    be   proven j,   but    that   tl:.e   prosecution   carinot 
£0   outside;    l^ei^e-  the   prosecution  attoLipted  to  put    in  a   contii^* 
uendo   but   failed,;      The    ii;_e    in  I.Iass  e  p    that    if  t..e    acts  are 
alleged   to  be   done    on  a   pa^^ticular   day   nairf^dy    the   eviiia.nce 
must   be   coriined   ^o-  that    day^    is   a  nari'owirj^.    of    tlie    r?x>^<a   and 
is   peculiar   to  Massc 

STATE  v   JFK'IISOlh    p,    4S,         Defto   was    indi'cted   for   the 
larcen;,    of  '^ICOc    in   coin  and  ':60c    in   currency «      HELD,    tae    in- 
dictment   is   defective   as   neithei-    ih:.a   no.-  ila-jc    J  s  ;-illcr,ed.:     • 
the    former   is  necessary   to   decide   ^;hother   the    c}iarr,e   is   barred 
by   the   statute   of  .limitations   t^rid.    bho    fo.-;.'Sr   is  necessary  to 
decide,   whether   the    court   tes    .ju^'isiliotiori , 

STATE  V  BEATON,    p,   49  o        The    indictment   a  lagged  thivt   on 
diw-rs   days   between   the   23   of  Sept«   and   the    30th-  of   Sept,,,- the 
defto    did  catch  lobsters    in  violation  of   the   lav/o     KELD^,    the   - 
indictment   \/as   defect ivc^    as   a   particular   day  rmst   be  na-aed-on 

1A! 


which  one   of  the   acts  wac   coirmitted, 

STATE  V  DODGE,    p,    49,        A   statute   prohibited  the  main- 
taining of   closed  weirs   on  Saturday  and  Sunday  heUieeri  April 
Ist   and  July  15th,    and  the    indictment   with  maintaining^  v/eirs 
on  June   Ist,    not    cloced  tii^e,    and   on  divers    other  days   betW'een 
thiat   day  and  July  15th,     H£LD,    the    indictment   was   defective. 
Neither  a   coiiiplaint    or  ari   indictiiient    is   sufficient    in  law  uri— 
less    it    states   the   Jay,  month,    and  year  on  which   t..e   supposed 
offence  was    coi. quitted,   ard.  an  act    prohibited  by   statute   on 
cert^iiri  days  uust   be    charged  as    coLM.iitted  on  one   of  those 
day  So 

Fere  time  wac   a  part    of  the   offence, 

SUl.n.IAHYo        Some   particular  t  iiiie  imst   be    stated  in  the 
indictment   and   it  must   be   a  possible   time,   but   as    a   c^rieral 
rule   the   exact    tiuie    is    immaterial.      If    the    time   is  -an  ele^ 
ment    of  the    crime    it  must   be   stated  -  State   v  Dod£,e  „      Also    if 
an  offence    is   stated  with   an   continixendo,    only   occa.'sion  s 
within  tlie   lii.iit   "  stated  may  be  pr6veno      Mass.,    narrows 

the   rule   still  more   arid  corifine^   the   evidence    to    the    Isy   al- 
lej^ed   -  Comuionv^ealth  v  Traverse,      A  place  must   be  alle{;:ed  but 
the   exact   place    is    iiiimaterial;    however   it  must    be   a  place 
within   the   jurisdiction  of   the   court,    arid   if  place    is   part    of 
the   descri'piiion   it  must   be   proven  as    stated,    or  else    "^here   is 
a  variance c 

(c  )     Description. 

TIEGINA  V  MANSPIirLD,   p.    50.        Deft,  was    indicted  for  re- 
ceivin;^  25  pourids   v/eify-ii    of  tin,   knowin,;^   it    to  liave  been 
stolen.      The    tin   consisted  of  two   lumps    of   tiji,    called  in 
ti'ade    ingots,   a   terrii   applisvl   to    the    shape,    ard.    the    tire   v/'as 
cast    into-  th^t    foiia   for  use,      UEiLD,    tl.ere  was    a   s^officient   de- 
scription. 

It  is  a  ques'iiori  of  fact  whether  the  description  is  a  - 
cori'ect  one  J  and  usiially  there  is  no  difficulty  so  t.iat  the  • 
court   can  decide    it  v/ithout   a   jury, 

STA'^E  V  MOBLi:,  p.  52,  Deft,  was  indicted  for  the  lai*- 
ceny  of  a  pine  loj,  laarked  H  x  W,  but  the  evidence  appli-ed  • 
only  to  a  lot,  marked  W  x  H  x  with  a  girdle  cut  arouTid  it,  Tlie 
court  instriicted  tliat  the  ix-rk  u-\i'J.\t  be  re^^arded  as  surpius" 
a£,eo  lijELD,  the  instruct iori  v/as  erroneous,  Tne  marks  v;are  a 
part  of  ti.e  description  and  de t e iniii /iC d  tl^e  identity,  and  al" 
t:.ou{^i  b.-.ey  iai;__ht  have  been  ouii-dtted,  still,  having,  been  in- 
troduced,   t:.ey   cariTiOt   be   disrer^arded. 

The  pleader  misleads  the  deft,  unless  he  sticks  to  his 
description,  and  the  deft,  having  prepared  his  case  for  one 
defence  ,   t..id-.t   find,    if  this  was   allowed  as    the   court   instpuc- 

142 


ted  in  the-  lov;br   cou.«.     :  .t   otatf;   ■^■-  Noble- .^    thai/  h3   h;-;.r;.   y^  .  ■■:ana 
of  defence, 

HASKINS  V  PEOPLE,   p.    SKo        Deft,   was    indicted  for  f-r-and 
lareeny   of  2   prouiisaory  notes    co:ruaorJ.y   ea3.1ed  barj_knot6&   of  the 
S  barxlCs,    eacli   of   the    va.lue   of  vSO^J    also    of  barJ-t  bil?^;^   of  bank© 
to    the   jury  unknown  and   of   a  ni:unbei'  arid  denomination  xvcL^-no^n; 
also    of   cilver  and  £,old  'coins    of  denoriiination  iiriknov^n;    all  of' 
the  property   of  one    Shav/r,     HELD;,    the    indictment  v^as   stiff! r:ienfe 
mien   the   substance   of   oxi   offence    of  an  offence   is    set   out    the 
Gi'and  JuxV  rimy   onit   a  matter   of  description  'Jhich  thoy  cannot 
ascertain,      Tlie   descripti-on  of   the   property  here   as   bariijnotess, 
."^•old  and   silver   coin.j    etc,  'ni-th.   the    st   atement    of   ownerships, 
w&s   a   sufficient    ideritif icatiori  of   the    offence;    and  as   2  of    - 
the   notes  were  described   in  fiili   tliere  vras   par tioulai'-ity   e- 
noU£h    to  support    tlie    iriiictment    on  tl-.eia  alonoj 

If  the   jury  had  not    everi  knovm  iv/ho   tlie    CT;/rier  va.s  ^  but    if 
tliere  vere    other  (jircumstances  \v..ich  would  give   a   sufficient 
description,   the    indictment   would  be   £,ood,   as   the    description 
need  be    sufficient    only  'SO   far  tlzat  the   defto  taay   know  \vi tii 
what   he  has    been   charged „      The    second  point    is    good,  and  if  one 
of   the   number   of   chargers    is   specific   enougi'.   to   support   it  ^   the 
indictment    is   all   righto 

C0LIt.:01^]7SALTH  v  STONE,    P/   54 „        The    indictment  alleged 
that    the   deft«   procured  T^aura  A  Fairbariks    of  Worcester   in  said 
county   of  Worcester   to   coKU.;it   perjury.      The  person  described 
i-n  tiie    indictiuent  was   a   rasidont  -of  Bi'cokline    in  the    state   of 
No   Ha      HELD,    there   was    a  variance  a      It   was    not  nec-'essarybto 
have  described  the    person  by   her  residence -j    but/  this  having 
been  introduced^    it  v/as    a  r.ntter  of   dcscriptiono     Y.'here   a  per- 
son or   thing,    necessary   to   be   irientioned  in  an   indictiiontj,    ia    ' 
descrj.bed  with  urmecessary  pa   tieularityj    the   cjirr^urastsiv.^os 
of   the   description  are  to    pro'v^en,   as    they  are  r.iadc;   essantial 
to  his    or    its    identity^ 

This    is    tlie    sarne   as    State   v  Noble,   p.    52^ 

SUMI.IARYo        It'  is  a   question  of   fact   as    to   the    sufficiency 
of   the    descriptionc      Surplusage  aay  be   introduced  into    a  de-^ 
scriptionj,    but  havijig  been   introduced  'it  must    be  proven  ^-■ 
State   V   Noble   and  Comaom/ealth  v  Stor^Oa      The  description' -need 
only  be    so  far   specific   that   the    deft.,  may  know  with  what  he 
is    cliarged,    ai'id   if    oje    ouz    of   a   specific   nuaiber  of   diarges,,.    is 
sufficient    to  -support    aii    iniictraentj    the    indict-nient    is  good  "• 
Haskins   People „ 


SECTION  FOTJr:.    COUNTS, 


,+ 


'  CASTRO   V   TTIE  QUEEN  o    Po    5G .        The    indie tmcni 
deft,    oontair^d  2   count;;;,    each   for  perjury „    the   offsncen   being 


comuiitted  at   two  diTferent   times.      Deft*  iras  found  gailty  on 
each   coimt   and  the   judgscaent  waa  cuoooLative,      H£LD»   at   Coaimon 
Law  a  man  dieht   be   tried  before   one   jury  at   one   time  of  dnp 
number  of  felonies   or  any  number  of  mieuiflrofr^nars^  provided     > 
felonies  and  misdeoaiiriors  were  riOt   tried  together*     Tha  deiTt* 
may  make  application  to  be  tried  for  one   ci:iar£;e   only  and  thea 
the  prosecutor  must   elect  as   to  -ariiich  one  he  will  p]*od9ed       > 
with,   but  without   such  application  the  ehar^&s  may  b«  ^olned^ 

On  account  of  the  different  method  of  trial  in.  fin£;lajt*d, 
it   is  well  settled  that     a  count  for  a  felony   earu-iOt  be  jolwad 
with  one  for  a  misdemeanor,  nor  can  th»  deft,  be  c^nvlat&d  o£ 
a  misdjeiueanor  oii  art  indictmOTit   for  a  f&  or*y,   althOU^ih  tt  was 
a  part    of  the   offence   cliaree.      In  the  U,    S«   the  riiXe   is   exact- 
ly  contrary  on  both  points  whether  at   Coiacxon  Law  or  by  statute 

The  Liain  facts   in  this  case  are  correet.     The  counts  In 
crjuninal  proceedin£.s   are   tlie  saue  as   in  civil  action,   ar4d  ore 
a  UiSans   of  briri£,iri,£;,  before   the   jury  a  nuc^er  of  separate    of» 
fences,  which  are   in  reality  disconnected.      So  pleas  and  jud<- 
gement   could  be  had  on  each   count.      So  a  sentence  on  Z  or  more 
counts    ean  be  ma4£   to  taJ^e  effect   in  the   futvire   if  it   is  ex** 
pressly  stated  that   one   is   to  follow  the   other,   as  otherwise 
one   could  ooccmit  a   crime  and  ti^n  continue   to  c<»xciit   others 
and  escape  puriishment     for  the   last.     But  when  no   time  is  merr* 
tioned  the    sentences  must,  all  be   considered  to  begin  at   o  nce^ 
And  the   prison  keeper  has  ^o  option  as   to  when  he  will  consd~ 
der  the   sentences   to  begin.      As   a  matter  of  course,    if  deft,  • 
is   tried  on  ari   indictment   for  felony   containing  2  or  more 
counts,    they  can  be   separated  on  motion,    but    if  no  motion  is 
made  his   right   are  waived;    the  usual,  way,  however,    is   to  have 
a  number  -of  indictments   but  these  may  be   jojned     on  motion  by 
the  state.      In  misdemeanors   this    separating  and  Joining   is  not 
allowed  as   a  matter  of  course   but   lies   in  the  discretion  of 
the   court , 

/  s 

COiaiONWilALTH  v  TUCK,   p.   62,  -     The    indictment    in  one   courit 
charged  shop  breaking  and  larceny,     HELD,   when  2   crimes  are 
so  necessarily  corinected  that   they  may,   and  when  both  are   ooci- 
mitted,  must    corxstitute  but   one  legal  offence,    there   is  an 
exception  to   the   rule   that    2  or  uore   crimes   cannot   be   charged 
in  Vcie   sarne    count    of  an   indictment.      Such  crime's  are  breaking 
arid  enter irig  with   intent   to  steal,  and  stealing.     But   even  if 
duplicity   exists,   tiie   objection  is   cured  by  verdict. 

The  case  is  clear,  Althoxigh  the  matter  ougiit  tP  be  sta-^ 
ted  in  2  covrnts  perhaps,  and  would  be  <ieffective  if  gifted  in- 
pne,    the  duplicity   is    cured,  by  verdict,/ 

COAMONWEALTH  v  FITCHBimC}  R.    R, ,    p,    63.        The    j.i)4totment 
contained  5  counts,  all  for  the    same   offence,'  a^^  the  jury  re^ 
turr^^O.  ^,  verdict  of  guilty  on  5  of  tl:ie   counts,     HELD,   th©  veix 
dlot  wist  be  set  aside.     The  jury  shovild  have  j:»etum^  Qne 
verdi-ot  on  all  the   covmts,   or  guilty  on  grm  fpunt,   If  one  was 

.    144 


no  '■■  jiiot  rr^-w  'h 


'.  .\j 


c 


.y»  e&v  tn&. 


proven,    and  not   giuilty  on  all   the   others;    in  the   serdist  which 
the  jury   returried,   as   the    several  courits  may  be   supported  bu 
different   evldertce  and  are  to  soix-e   extent   inconsistent  with 
each  other,    it    is   Impossible   to  determine  which  was  proveno 

TS/here  different   counts   describe  a   crime    in  dlJTferent  ' 
ways,   a  general  verdict    is   E^ood,  whid::  means   that  the   deft«    is 
g,uilty   of   the   crlae   attempted  to  be   described;    the   jury  also 
ffisy  firid  a  verdict   on  orte    coujit,   but    it   carijiot   find  a   separate 
verdict   on  mora  thari  one,    foi'  both  carmot    be   righto 

CLAASEAIJ  v  U,    S,,    p,    C5«        HELD,    if   there   is  a  general 
verdict   and  one   coxartt    of  t..e    indictnient    is   g;ood  but    the   others 
are  not,   the   j^ood  cooirit   yill   support    the   verdict,    as  tlje   deft, 
ou^L-t   to   be   puriished, 

SIC.I1LARY,        In  Eri^larid  a  courit   for   felony   is   not   j  oinable 
with   orj£t   for  a  misdemearior,    and  a   conviction  for  a  misdecieanxjr 
is  not   allowed  on  ari   indictment    for  a  felo   ny,   althou^.   the 
misdemearior   is   part    of  the    criirie    charji^ed;    in   tl.e  U,    S.   the 
rule    is   contrary  on  both  points ,      Id  the    irtdictment    is   for 
felony  arid  contains  2  or  luore    couriis,    tljey  iuust   be   separated 
on   the  motion  of  the   defto      Also   a   ni:imber   of   iridistment  may  be 
joiried  on  motion  by  tlr.e   state;    but    in  case   of  misdemeanors, 
ti.e   joining   or   separating   lies  v/ithiry{  tr.e   discretion  of   tliS 
court  0      Upon  a   judgement    on  different    courits   tlie   sentence  may 
be  made   cumulative  provided  it.    is    so  expressly  done,   but    oth*- 
e-rwi'se    aH    the   sentences  must    be   considered  to  be^^iri  at   once< 
Wo   Yc   holds   that    on  a   conviction   on  an  iridictment   containing 
several   counts,    cijui^ulative   sentences  may   be   imposed  for  each, 
but-  not 'in  the  a£^rer,aie    exceedin?^  the  ILuii    of  puriishjnerit   for 
onco      If  different    courits   describe   the   oferice    in  different 
ways,   a   £,eneral  verdict    is   L,ood,    of  a  verdict    on  one   courii   is 
£Ood,   but   a  verdict    on  more   thari  o j  e   co'orit    is   bad;    if  one   of 
the    counts    is   good  arid  the    other  are    badj    but    if  the    good  one 
is   tyafficierit   to  support   a   general  verdict,    such  verdict    is    - 
gooda      Duplicity   is    cured  by   vei-viict. 


CIIAPTilH      FOUR. 

PORr.IilR  CONTICTIOII   OR  ACQUITTAL. 

SECTION  OiI£„      DOUBLi]   JEOPARDY. 

Iri  most   of  the   states   of   the  U,    S.    the  provision  of  the 
Cotaxion  Lav/   as   to  double   jeopardy  has  been  put    into   tdae  consti- 
tutions,   aarid  so  rio  legislatiori  cari  be   passed  there  on  o      In  socb 
as   in  CoriTio,    it    is   riot   put    iri  t^.e   Corist»,    and  so  in  Conno   a 
statute  has  been  passed  allowing  the  prosecution  to  file  ex- 
ceptions arid  a  riew   trial   is  allowed  althouj^-*    tliere  has  be«3na 

145 


former  acquittals      Ei't    is    the    general   rule    than  one    carjxiot   be 
twice  put    in  jeopardy « 

BOUX'S   GASil,    p,    67,         DeTt,    was    indicted  tov.    poisoninf^ 
R  arui  pleaded  that  he  was   before    indicted  arid  acquit -ied„  ' 
F£LD,    the  preceedirit,   indicjtmenii   was    insur-Aicient  and  deft, 
could  therefore  be    indicted  a    second   tiaOo      A  preceeding  ac- 
quittal  oi'  conviction   is   a   r,ood  plea   orily   ^hen  such  '.vas  law- 
ful,  as    if  ujilawfui   the   life  was   never   in  jeopardi  , 

The   question  of  aurdei-  v/as    not   raised  on  this   indi  ctioent 
for   so   long  as   the    indictment    is    ii-le^al   or  defective   any 
question  of   fact   gone    into  are   not   firiai;   -suppose    on  an  in- 
dictment  for  murder  facts  as   to   the   deft's*  havin£,  cocamitted 
robbery  are    £,one    into  arid  he    is   fourjd  not    to  have   coLxii  bted 
robbery;    this    could  not   be   a   ba^r  to   an  indictment    for   robbery, 
arii   this    is    a   £,ood    illustration^ 

PjEGlIIA  V  D£AN,   p,    69.        Deft,   was    iridicted  for  forgery. 
After  the   jury  had  been  svorn  arid   during,   the    opening,   for   the 
prosecution,   deft,    stated   that    he  was   not    prepared  on  his  de*- 
fence,      H£LD,    the   jury    is   disciiar^^ed  from  c;,ivin£_,  a  verdict, 
which    cari  be  done   v;ith    the    coxisenb    of   bo  :h  parties;    t/ie    trial 
was   postponed; 

The  defto  be£;ins  to  be  in  jeopardy  as  soon  as  he  is  broug 
ht  before  the  jury  arjd  charged  with  tiie  cricae  ,  ani  it  does  not 
depend  on  acquittal  or  convict  iong  From  that  time  ori  he  is  in 
jeopardy  and  uriless  he  corisen:s  the  trial  must  zq  ori  or  else 
he  can  ple-ad  do  ble  jeopardy;  tl^ere  are  a  fev/  exceptions  to  be 
seen  later^ 

COI.L'.iOinV£ALTH  v  ALDE'-JiAII ,  p<.  70^  On  an  indictmeni  for  an 
assault  arid  battery  deft,  pleaded  /^uilty  arid  that  ha  had  him- 
self iriformed  a  justice  of  the  peace  of  his  offence  arJ  had  - 
be^n  sentericed  to  pay  a  fine  ^  YSAD.^  a  conviction  for  a  bread* 
or  the  peace  before  a  r:ia£,istrata  on  tl.e  corifession  or  inform- 
ation of  the  offender  hi:ase3,f ,  ds  rio  bar  to  an  indictment  to  • 
an   indictme.nt    by   the    Grarid  Jury, 

Tlie    case    caririot   be    su  ported  on  principle  arid  the  only 
ground  for   supporting,   it    is    on  public   policy   and  tiat   there    is 
fear   of   co3J.usion, 

C0LLM0N',7i;ALTH ,    v    GREEII,    p.    70-.         Deft,,    after   conviction 
by   a   jury  for  uiurder,   moved  for   a   ..ev;   trial  on  tlie    grourid  that 
one    S,   a  witriess  for  t..  e  gcverrji-ient  j   l.zA   oeGXi  convicted  of 
larceny,   arid  tliereby,    bein^   inf  an^ous ,    cou.\d  not   testify, 
HELD,    a  new   trial    sho-uld  be    r,ranted<,      The    sa...e  human  principle 
that   forbids  a  man  being  agairi  tried  for  the   sane    crirae,  ap- 
pears  to    require   that    after    coriviction  a   prisoner  be    f:iv«n     ■ 
another  opportunity   to    save  Iiis   life    if   on  the   trial  aj-A/tiilng 

146 


I 


has   occurred  to   render  doubtfvJ.   the  ie£,alit7  or   justice    of  the 
convicitio.j.c 

Iri  the    j2r.l.£;^;i.3l\  practi   cie   a   lionvicticu  for  folo   ny    can  be 
set   aside    orj.y   on  a  ".vrit    of  error,    for  defects    in  tl.e    indidt- 
ment    or  for  tiiose   apparerit    on   the   rO'^ord.;    and.  net   for  an./  in^ 
forroc5j|,itie£'    in  the    trc'.al^    siach   ag    a  ATrorif^  cha.r£,e  j-  or  a  w^on^.- 
adiniss-.ou  of  evi>ienc;e,.      But    iri  the  'J,,    S^    the  deft^.  lis  ■/  iMJle 
except  ioi-iS    for   n/iaost    any   reason  and   if   they  are   allo.yed  he 
may  be    tried  a.£ain5    as   by  iiis   request  he  v;aives   the    risl.t    to 
his   defence    of  beinc,   i^i  jeopardy    before, 

COMI-rOrnVjIAI.TH   V  LOUD,    p.    72-         On  aji    ina.tctment    for   l.ar--' 
ceny  deft  <,    offered  to  pi^ove    a  prior   conviction  for    the    fiame  • 
ofl'ence  before   a   -J   of   the  peace   and  that    he   l^d  fuiful'.i.ed  the 
sentenciG  ,     FELD.    siish   conviction  constitutes   a   bar    ':o    ili  is    iri-' 
dictraer-.t ,    althourh    the-  proceodirit^s   before    tl.e    Justice  \7ere 
errcneors    arid    ""...e  de77t,,    oould  liave  had   the   judeemerit    reversed 
on  error;    yet    it    is   a  principle   of  (rrinina'l    lavr   that    a   JuJ^e— 
ment    cf   rpai.lt  y   on  r/roceediri{^s ,    e.'.L-Azoa[h   erroneous  >    is    i^ood 
till    ir.    is    revergedo 

BR-^iTiT/C:  V  P.EX)PL£,.,   p^    74,        R  and   3   others  v;ere    indicted 
for  r;;urde'r,^    .?.nl  R  v/as    'convicted   of  uion 3 !!vau{_h t e :■   arid   the    rest 
of  raixrdero      They  all  raoved  for  a  Yi3\f   trial  \v>J.ch  va^s    gmnted, 
and  on  "Jhich   ail  four  were   found   guilty  of  uurder^      '-'iiLD,    R 
was    ii„properly   tried   the    second   tL.ie   fcr  murder-.      Kis    convic- 
tion for  liiarislau^nterj   which  was    le  caD.   under   the    ird.ictment    as 
the    £,reater    includes    the    less,    ai.io  i  nted  to    an  a.cquittal   for 
murd.ei'c      His   jrot.ioa   fcr  a  nev;   trial-;    as  his   acquittal  was   ne- 
ver waived.^  ruust    be    rs£:,arded  as    extending,   or-ly  to  the    d-;ar£,e  • 
on  ',/hich  he  v/as    convicteJ;    therefore   bein^  put   on  trial    a   se- 
cond,  time    fcr    tlie    off'snoe    on  \;hich  he   v/as    acquitted,    'was   beirjt; 
put    tv;-ice    in  jeopardy. 

All    the   deftc    asks    is    that    the    for-rser  jeopai'-iiy  be   set 
aside   as    to   that    for  which   he   was    convicted,    and    t..e   fortaer 
jeopardy   is   d  is  re  guarded   only   so    far   as   he   'asks   it  may  be.      The 
same    pr-inniple   applies  to   cases  v/hsre   >iieft„    is    convicted  oti 
some   cova'its    in  an  indictment    an'^'    is   acquitted  as    to   ot.iers, 

SIMV.ONS   V   U,.    S,j    pc    7G ,         Lurin£,  the    trial    of   the   defto 
for  a    capital    crime   the    fact   was   brout^.t    to    the    not  itre   of  the 
court   that    orsj.    of   the   jurors  had    sv/orn  falsely   that  he   had'  no 
acquaintance  witr.    the    deft..      The   c;our-;;   d,:l.schaF£;ed  the   jury, 
HELLj    xt    is  withiri  the   discretion  of   tiie    court    to   dj.-5ch3.i-i;e 
the   jury  vmerej    irom  all    i;he    r;i.i-\'.i;;a'r,tar.ci.eB..    there   is   a  mani- 
fest   fo?---  the    a^'.t    or   the    ends    of    jiibtice    woulU-    be    otherwise 
defeated,:      Def i.  ,.  ,    not  navin^;  beeii   then  artquitted      or   convict-ed 
may  be   tried  a^ain  without   beinc  p''^'^-    twic-.e    in  jeopard.y, 

SUfvO.lii i-y ,         If  i^ri  irjiiictnient    is    iiasuff icient^^    ■any-^tJoa-r-Lc-'^ — 

14? 


I 


tioni,   or  acquiital  upon  it    Is   not  a  bar  to   a  subsequeni   trial* 
The  defto  be^^ins  to  be   in  jeopardy  T^hen  the  jury  is   ejopajielled 
arid  he    is  bi'0U£;.t   to   the  bar  and  dnar£,ed;    after  that,  ujtless 
he   consents    to   stoppiric   it,    the   trial  uust    lo  on,   witii  soiae 
exceptions;    without   tlie  deft's«    consent  :*he   jury  may  be  dis^ 
charted:-  1,  upon  disa£ree.uent ,  when  all  hope   of  a  fair  agree- 
nent    is   at   an  end;    2,  when  sOi.ieone   of   the   jury  is  prejudiced;  • 
3,   when  a  juror  is    ill. 

It    is  held  that    a   convic'-ion  for  breach   of  the  peace  be- 
fore  a  magistrate   on  the    corifession  or  infoitaation  of  the   of- 
fender,    is   not   a  bar   to  an   iridictment  before   ti-ae    Grand  jury;  • 
this    is   not   supportable   on  principle,   ar4.d  if   the  justice  has 
jurisdiction,    it    should  be  a   bar,      A  conviction  for  a   felony 
in  Jlri£;Larid  cari  be   set   aside   orJ.y  by  v/rit   of  error  for  defects 
in  the   indictaent   or  on  the   record;    bui  dn  the  U«    S.    the  deft, 
may  have   exceptions    for  arty    irregularity,      Althouj^h  the  deft, 
is  not    in  jeopai\iy   if  the    iridic t-isrit    is   defective,    yet   if  he 
waives    the   defect   arid  takes   judgecuent  ,    such  jud£,a2ient    is   a  bar 
ro   another   trial.     Yfhen   the  deft,    asks   for  a  new   trial,    it    is 
orily  as    to   tlr.e  charges    of  w..ich  he   was    convicted  arid  not    as    to 
those   on  vd-icli   ^.e  mis  acquitted,   arjd   so  he    car^j-xot   be    tried 
aLain  on  tl.e   latter* 


SjSGTION  T\TO.         IDEiriTY   OP   0F7£1JC£S. 

VAiro£RGOLlE'S  CASil,    p«    73,        Defts,  wore   tried  arid  acqui- 
tted on  ari   iruiictuient    Ci*ar£,in£,   tliem  wit^h  bur£;lar:>'    in  breaking 
and  entering,  a  i-.ouse  ani   stealing,  coods.      They  were   then  irr- 
dicted  for  burglary    in  breakiri£,   arid  entering  vd.  th  an   intent  -to 
steals      Plea,    outrefoi'S  acquit,     HELD,    such  acquittal  was  no 
bar  to   this   indictment,      Uriless    t^.e    first   iridictxiient   is    sudi 
t   at   ti.e    prisoner  tiit^l.t  l:3ve    been   convicted  upon  it   by  proof 
of  facis   contairied   in  the    second  -indictcient ,   an  acquittal  on 
the   first    is    no  bar   to    the    secorid.      The   evidence  -supportinc, 
t.':e   second   indictaient  would  not   support   the    first. 

This   case    is  an  i^jportant   decisio/i  on  t:-.e  law    of  burclary 
as  v/elj.  as    on  indictment;    it    slio'.vs   tl^t    there   are   2  kinds    of 
burglary  -  first,   breaking,     tiJ.  enterint^  v/ith   intent   to   coQiiiit 
a  felony,   and  secons,    breaking   and  enterin{;,,    and  stealing;    in 
the  last   01    these   there  may   or  raay  no'",   be  any  dntont   oi'  any 
kind  concurring  with   the   break ir^t,  and  entering,.      If    t^*is   dis- 
tirjctio.x  did  not   exist   this   case    co-old  not   bQ    supported,   but- 
as    it   does   exist,    acquittal-  or  conviction  on   the   one   is   no 
bar   to   a    trial   on  t;.e   other, 

Tiex  V  PLANT,  p.   79,       X  and  Y  were   Indicted  for  tl^e  mur-- 
der  of  P,   .some   of  the   courits   chaBgin^  them  with  being  joint    ■ 
principals,    arid  other   counts    charging-  X  with  the  murder  and  Y 
as   being  present,   aiding  and  abettirig,     x  was   convicted  on  tlie 
indictment  and  Y  was  acquitted  on  the   ground  that  the   evidence 

148 


only  showed  Y  to  have  been  an  accessory  before  the  fact.  The 
prisoners  v/ere  a£ain  imlicted,  X  as  principal  arid  Y  as  an  ac- 
cessory before  t.^e  fact,  Y  pleaded  his  acquittal  vmier  the  ■ 
foriuer  indictmerito  H£LD»  Y' s  acquittal  is  no  bar  to  the  pi*e- 
sent    indictment. 

The   case    is    clear«      Ari  offence   coiit-iitt'ed  as   a  p.'incipal 
is   not   ari  offence   cocxaitted  as    an  accessory o 

REGIIIA  V  CALVl,   p»   80«        Deft,  vas   indicted  for  an  as- 
sault   ./it:,   intent    to  kii:.,   arid  the   jury  acquitted  hii-i  on  tlie 
^rouTid   iljiat    there  w-as   iiO   iritent.      Or*  tl^e  preseni/  indiuwaeiiu  • 
for  taurder  t..e  defto   pleaded  his   foruiCracquit tal,      HULD,    it    is 
not   a  Lcx^  plea.      The   acquittal   for  the   wiiole   offence   i's   orily 
ari  acquittal   for   the   w:.ole   arid  not   for  every  pai'u    of    it«      So 
the  defto  laay    stili    be   fourid  r^uiity   of  \/ouridiri£,   arid   to   sus- 
tairi   t    e   present    iridic tiaertt ,    it  vyould  no      be  necessary   to  p 
prove   an   iritej-tb    to  kill,    but   oriiy  art   intertt    to   iriflict    an  in- 
jury  darig^erous   to  -ife  and  v/hich   resulted   iri  death. 

The   former  verdict   set-tled  as   a  fact   tl-^t   there   was    no 
intent    to  kill  but   tiie   deft.,    cari  stili  be   convicted  of  murder 
because  luurder  i.iay   be   cocmitted   in  certain  cases  Yiriti-ioub   any 
EUd.    iriteritg 

REGINA  V  MORRIS,    p.    82,        -Deft,  was    convicted  of  an   as- 
sault upon  L  arid  vas    L-^prisoned,      L  afterwards  -died  arii   tr^e 
deft,    is   now   iridicted  fcr   the   :.^nslau,',hter  of  Lo      Deft,    plead- 
ed his    forner   coriviction,      n£LD,    t:.e  iviajority  of   t-.e    court 
held   tl'iat  his  plea  "sras   no  bar   as    a  new   oiTence    arose    on  the 
deat.,   of  Lo 

At   present'  art  assault   is   a  necessary   ingredient    of  murder 
arid   if   t..e   deft»    is    corivicted   or  acquitted  of  assaiilt  he   can- 
not  after.vards  be   convicted  of  any   crime   of  whidi    the  assaulti 
is   a   part   arid  a  pardoi-i  for    t:.e    assault   would   be  a  bar   to  an 
indictment   for  Lairder,      It  uakes   no  difference   whether  the 
2nd  irjdictnient    is   for  a  {;,reater  or  less    offence,   as   the   only 
quest  iori   is  wh-ether  ari  eneeritial  part    of   t-.e  nev/   c/iar^^e   is 
i*es   adjudicata, 

Vm.IYSS   V  HOPKIIIS,   p,    8G,        The   daft,   by   striking  a  horse 
which  v/as   ridde<ri  by  W  -caused  her  to  be   throv/n  off,  whereby 
she  was    injured*      Deft,   was    thereupon  convicted  and  fined  be- 
fore   tx.e    Petty   Session  urider   tiie    statute-  for  negligently  or    ■ 
\rilfully   causinr,  injiu-7   to    the   plairitiff.     He  was   after^/ard 
ag,ain  corivicted  and  fined  under  ariother  statute   for  a-ssaultir^ 
the  plaint  iff  o     H£LD,    the  latter  conviction  was  wrong,,      I'he 
act   charged  on  tl^^e    first  occasion  was    ari   assavilt    arid  became 
ari  offence  purtishable  under  either  of  2  statutes,    arid  a   con- 
victiori  uTider   orie   would  be   a  bar   to   coriviction  uruier   t.ie   otlier 
Also  where    the   conviction   is  by  a   court   of  ccxnpetent   jurisdic- 

149 


Oil 


tioH;,    it  makes  no   difference  whether  the  f^*siviction  is  by  t. 
EU)-.iriiary  pi  cdeeding,  before    justices    or  by   a  trial  before   a 
juryo 

The    case    is   clear  but    it  miist    be    di  stincuisl.od   froa  a 
ease  Tirhere    tl:e    sa;ne   act   constitutes   2   criiues;    here    t.:.ere    is   an 
offence    contrary   to   2  statutes,    but    the    2  punish    tha    sa.:ie    this 
the  point   as   to  a   trial  before   j    stices    is    io  be  noiioad^   ari.± 
if  t.hey  have   jurisdiction^   a   co^iviction  or  afquittai   oaf  ore 
them   is   a  bar   to   a   second  trials 

STATE  V   IHGJLES,   p,   So,        Irrdictiuent    for  a   riot   and  for 
beatinr   axul   iAiprisoninc  B,      Doft<,    pleaded   that  he  had  been 'be^ 
fore    indicted  arid   convicted  for  ari   assault   and  batte^-y  on  Be    • 
HELD;    the   ple3   was    L'ood,   as    t..e    state    carjnot   dovi.xG    a.n  aotj 
consisting   of   several   trespasses,    into  as  i:iany   indictments   as 
there   are    trespasses  which  would   separately   support   an  indict- 
i-ient., 

The   facts    secuied  to  be    on    the    sau.e    order  as    in  Re^iria  v 
i.Iorris,    but    the    cases  tiay   be   distinguished  perhaps    on  the 
ground  tluat   the    driar{;,es  here    are   all    for  misdeniea^-xors  c 

ST.ATE  V  DMiON,  p,  83,  Deft„  wounded  2  persons  w^ith  one 
stroke ;;  arid  ho  was  convicted  of  assault  in  one,  and  in  ari  in- 
dlcit.e.ent  for  an  assault  on  the  otl-^erj  pleadc-d  his  fcmior  con— 
vicf-ior:.c  '  HELD  J,    it  v/as   a   good  plea© 

Deft,   has    only  violated  public   seJurity   once    and   there    is 
orxly   one    injuiy   to    the    state o 

t  4 

STATE  V  LE';7ISj   p,    89 o        Two    indict.aents  were   foujid  agains 
the    deft.,  J    one   for  burglary   and  larceny,    and  the  otiier  for 
robbery 0      The  larceny   arid  robbery  '/ere   for  taltinj-,   the   sacie 
goo;ls   and  there  was    but    one    taking,,.      Deft  ,   was   convictod  of 
larceny  ^w^  acquitted  of  bur^jlaryc.     HELDj    the   convict i.ori  on 
this    indicttnent    is    a  bar    to    the    second   indict.aorit    for    robbery^ 
as    if  he   v/Eo    fnurid  £,uilty   on  ti-ie    second  for  -^'obberys   he   "ivould- 
b^^    cor.'.-'ioted -twi'ce   for   tal^inf^   the   saiiie    £:oodSo 

In   the   Uc    So    a   conviction  or  acquittal   for  ariy  p?.rt    of  a 
felony    is   a  bar  to   a   subsequent    trial   for    '::l-.at    felo:^ii''o      A  ser*- 
ies    of   assaults    coirmitted   through   a   leng^th   of  t  Liie  r:;ay  be  held 
correctly   to  be  different    offences ,   but  v;J:ien  cwir-utted  practi- 
cally  at    the    same   time,    it    is    one    of  fence  ^ 

PEOPLE  V  LIcGOWAN,    p,    90,        Deft  a   was    indicted  for  larceny 
of   soiae  watches   and  he   pleaded  tlxit   he  had  beeii   indicted  and 
acquitted  f^r   robbery   of  tiie    same ,      KELDj    So   fai'  as   the   nature 
of   the    offence    is    concerried,    the   plea  was    validj,    for  the    same 
proof  v/Quld  sustain  eiti-^r   i-ndictment   to   the   extent   necessary 
for  tho   purposes   of   the   plea.      Therefore   the   burden  is   on  the 
prosecution,    to   sliow    tlict   the    offerices  are    substantially  dif- 
ferent   ji-j   point    of  fact, 

150 


COMI-.IONWEALTH   v   CLAIR-,    p  .>    93  c       Iruiictnient   for  cmi^ezzjiing 
soiae    ore  .'c  oat  St,      ^^1:6   def-t*   had  boeri  berc..-ci    tried  arid  acquitted 
on  an  iudi ctu^QriC    I'or  eixfoczzlin;^  ..-ia'-Gi^ials  used  in  uaicin,-  such 
ovei-coatso      TLe  laaborials  liaJ   been  delivered   to   ti.e   ieftg    to 
make    into   overcoats   and    t:-.o&e  :..ado    wero   returned  to    i.-.e    owier, 
who   redelivered  the^  to  deftr,    and  l.e   then  embezzled  them, 
H£LD,    the   former  acqv.it  :a     v;as    r^ot    a  bar.      The    2   of  fences  were 
separate   and   Gvidence    offered  to   sustain  one   v/ould   nj:   be    sup^ 
poried  by  evidence    offered   Vo   Eus':ain  the    ot-.erj      T/.a  test    of' 
identity    is  \t.et.-.er  the    dcf  t  <,   i-.i'ht    have   bGQ.iL   convic":ed  on  one 
indictiuoni   by  proof   of   facts   alleged  in  the    2ndo ,    and  it    is 
no  i    sufficient    :o    sa.     thie    facts  are    the    sa^.^Cj   bui    the    question 
is  v/rx£thcr    sue.    facte   are    so  alhe^^ed  as    tc   consi  ituia   the    saire 


offence 


e 


■'/here  there  is  an  acquit -al  on  accourit  of  a  fatal  variaric 
in  the  1st  o  indictiuent  or  because  tnere  is  a  misdescription  ixi 
it,  there  xrcy  be  a  subsequent  trials  althourh  it  is  realJIy  for 
the    saue   ofL'ence., 

SUIillARYo      If  an  exxential  part    of   t-.e   offence   cLiavied.  is 
Res   Adjudicata,    the    indictuent    caririot   be   sustained;    bat    ari    irr- 
dicti^ient    for  bur-.Iary    in  breaking:  and  enterinr^  and  stealing,,    • 
is  not    th^-i    saiae   as    burr,l-i*y    i^i  breaking  ^^^id  entering    jith  aii 
inter. t    tj   co.i..i;   a   felony   -  Varuiercorub '  s   Case;    also   an  acquit- 
tal  for  csL   assa.-.lt  v;it,,   intorit    to  kill    is   not   a   bar   to   a^i    in-- 
dictsient   for  .::arder,    but    it    .ras  h.eld  erroneously   in  Rex  v 
horris    that   a   p^iriiGhuicrit    for  aji   assaiC;    sLaplyj   without    an    irr- 
tent    to  kill,   v.'cs   not   a   bar    to   an    indict;nent    for  ...urder  \7hen    • 
the   victL..  died^      So   if    tha    sa.-.c    act    constitutes    tvo   crimes, 
one    is   not    a   Jx:r-   to   a   conviction  on  the    other  -  whai'e   an   of- 
fence   is    contrai-y    to   2   statutes   puras^^in^   the   san-te   thing,,   the 
state  i..ust    elect  uhid.    one   to    take    -  '^fer.iyss  v  Hopkins;    the 
test   to  be   kept   in  a^ind   is    :hat    or£    injury    to    the    state    can  be 
punished  but    once   although   the    i•es^^lts  rjay    be    spread  out;    foo*- 
instance,    sliootinr,  a   bullet    tl,;.rouf:h   3  iiion   is    onl:.'    one  „iui-dero 

In   the   U,    Sc    a   conviction  or  acquittal   Tor  any  p'a:."t    of  a 
felony   is  a  bar   to    a  subtic-querit    trial   fov-^    that    felony o 

1.  '■ 


OBT/il.IIIIC-   PKGP£1'I'-V  BY  PALSfi   PIE^iillTG.ES  , 

SECTION   01I.e.      TTIE   QUSSTIOil   OF   TITLE. 

Rr.GUIA  V  ]:1LHA.;,    pc    7iS  o        Deft.    b.    pretending  thai  he 
was    sent   by  a   custOiOfier   of  a  livery   stable  Ijeeper   to   gat   a    - 
liorss-.for  hiia,,   had  a  horse   <iel i.vored  to  hina  v'.-.lc-h  lie  uw3d 
duT'iji^  the   da.y  and  returned  Virithout   paying,  for  the  hire„ 
Deft„   viras    coirrlct-ed  for   cbtaininr;  coods   by  Palse   Prs^vences 
ujuiar  the    statute.,      FiCLDj    convict  ion  must   be   quashed.      The     ' 
word   "obtained"  laeanc    to   £:et   property  and  not    the   ].oan  of   it. 
To   constitute   an   obtainiur,  there  caust   be   a??   in  j-ar'^e-ny   and 
intention  to  depx-ive   ari    owner  v;holly    of  his   property^ 

In  this    respect   false   pretences    is   like   xar-ceny   arid  ern^ 
besslemen:    for.,    there  must    be    the   a-riinius    furandi  a      Doi^iinion- 
must   be   obtained  just    as    in  larceny,,     -Larceny  deals  with  poss- 
ession-while   F,    P,    deals   -./ith   property, 

l.E:i  V  /iDA'-.S,    po    720,         Deft,    liired  a   boy    to    go   to    a  hat- 
ter's  and   say  he  had  been   sent    by  X   to    4;,et    a  hat   v/hich  had 
been  made  'for  hkiio      Tlie  i-iat   was   delivered  to   the  'boy  who   £,ave 
it    to  deft,      Deftc    v;-as    convicied  of   j^rand  larceny o-     ■F?£LD,    the 
conviction  ',?ac   \7ronr,o      It   v/as    obtainin[_^   floods   by  ?,    Pc 

In  ?o    Pc    the   tit'le  must    be   obtained,      Loolcsd  at    from   the 
point    of  view   of  deftg    tl^ere  must    be   ari   aniixius   furandi;    frora 
pont  'of  view    of  prosecution  there  must   be   ari    intent    to  pass 

iitlOo      Intention  to  pass    ti-tle    is    sufficient^,    thouE>.i  for 

some   reason  it   does   not   pass. 


SjSCTIOII  T"'0o         PPXjPH^.TY, 

REGINA  V  ROEIIISOM,    p,    721,         Deft,   made    application   to 
the   prosecutor.,   who  had  advertised  2  huj-itinr,  do£,3   for   sale, 
arid  by  pretending  he  kept   a  man  servant    ir^duced  prosecutor   to 
send  them   to  liimc      They  v/ere   sold  and  deftc    was    convicted  uri— 
der  a   statute   for  obtaining   goods    by  f3.ase   preteix?3es.      HELD,  • 
dogs   are  not    subjects    of  larceny   at   Coumon  Law  a-nd  were  not - 
chattels   accordirig  to   the   wording  of  the    st    tute^ 

Tliis    is   a  clear   case   for   in  Fo   P,    the   requisates   are  tha 
same   a»   in  larceny-  that    is,    so   far  as   applicable,, 

PEOPLE  V  THOI.IAS,-  p ,-  722c        Deft,   was   convicted  for   ob- 
taining money  uj-jder  ?„    p,    in  an  indictment^  which   charged  as 
follows  o      Th-at   deftc    falsly  pretended  to   J,    that   a  negotiable 
riote  which  Jo   had  given-h.ini  arid  which  was    due  had  been  lost,  - 
and- Jo    thereupon  paid  the    ar.iount ,      HELD,    the    conviction   on  the 

152 


indicti-ient  vas  ^i-on';;,,    for   it  v/as  not    evident   fi-oi.i  the   indict- 

x.ient   tliat    C   sustained  aa;,    dai.ia^eo      A  TaXse   repi-c  santation  by  • 
whicl.   a  iLian  iaay  bo    cv'.-ieated  into  doin;^  a   duty   ib       .  •  v/iil-^in   tl:e 
staiute^,   noi"  did   the    indie ixuent  merit icn  the   subsequent   ner,o— 
tiation  cf  note  by  deft,, 

[■ere   J  apparently  v/anted   to  pay  t:.G   dobt   arid   t^.e    repre— 
serit^ition  \7as    to  have   J      efx'ain  fx-o.-.  oskinj;,  t"Oi'   ti.s   note  and 
theiSy    it  iax£i\t   be   argued,  was   the    sols    object   of    the   pretence 
Suppose   a   vendor  delivers    {^oods   to   tne   ccrrier  and   t;-:G   vendee 
becomes    irisolvent,      '"..e   veridor    then   ^oeo    to   ti.e    oarr-iar  to   £-€t 
back  his   {^oods   and  does    so   by   repr-e-jent  inj,  that  he   is    thn   verir- 
dee,.      Beaie   says    it    is   riot   a   crime  ^      Veridor  h£ui  one  \7ay  to  g^et 
his   £Oods   legally   and  because  he   obtadned  thjC-./j  in  ariother  way, 
false.;    it    is   tclo':.    £,ettin{^   theia  by  P,   'P  r.    for  v/h3re   a  r^jan  has  a   - 
ri^t   to  propei'^ty    iri  orie   v/ay   arid   gets    it    in  onothor   it    is   not 
crixninal,. 

STATS  v  B  ACKj  p,  723 ,  Dext  „  desit,3'i--diy  and  by  faXse' 
pretenses  v/ith  intent  to  defi-aud  obtained  board  and  lod^-inCo 
KilLD^  that  he  could  not  be  convicted  uj-ider  a  statute  VJhich 
punished  t..e  obtair/in^  in -such  a  narjrier  of  "i.ioney ,  g,oods  •-  ~ 
and  o'^ihei:-  p.'-operty^g  Eoar^  and  lod^^in^^;  is  ri.ot  v/ithin  the-  • 
terras ,.  Sue.  c-ariTiot  be  certairily  and  definitely  described  in 
the    iridict ei.it n„      he 

Beale   thinks   that   a  boarder  c^ts    on.ly  a   ri{iit    to   eat   — 
that    is  J    to   destroy   so  nrac.  food.      If   so    iitle  never"  paasess 
except    to  v/hat    is  ^aten,    arid  afier  bein£,  oaten   it    is    not   a 
subject    of  larceny. 


SECTION   TVRZEc      THE   PRETEIIGL. 

R.CX  V    GOODHALLj    p,    725c         Def  t  o    app_ied   to  X  for  r^ocxls, 
but  v/as    refused  credit.      However,    orv  his  pr*CLii3e    to  pay  on 
delivery/  the   goods   x/ere   sent   to  hirio      Defto  lu"d  no   intention 
of  payir^o      HELDj    that   deft.,    vas   net    c"-i^-ty   of   obtaining  roods 
by  ?o    Pc      It  \?as  merely   a  pra:;tise   for  future    conduct  whi'ch 
coxrtaon  prudence  wouJ.d-have  fo^'eseen  and  prevented   injury. 

This  tsa^e  is  iaportant  as  showin£,  a  fiondauental  princi~ 
pie  ••  that  iSi,  a  representation  of  a  presnt  f'atrt',  rict  a  pro~ 
mis^   as   to  future   conduct,    is   necessary  for  F=    Pe 

1EX  V  Y/AKELIrIG,    pc    726 o        Deft.,    having  been  ordered  by 
everseer  of   the   poor  'to   f,o   to   work,    conteruied  that  he   sould 
not   for  'lack    of   siioeso      Overseer  fu^^nished  him  vfith   a  pair, 
but   deft,  had  two  pairs   already   obtained  from  the  parisho 
HjEL-Dj    Defto  was  riot   guilty,     -The-  stateuerit  v/as   ra'ther  an  ex- 
cuse, for  not  woi'king   thari    a  P,    p.    to   obtain  goodso 

It    is    the   obtaininr:  by  ?<,   P^    and  not    the   use   of   them 


vl-ic;   cons  ii  f"'Ut  esa   cii'luoa 

'^.LX  V  BA'^JTARD,    po    727.         Deft,   v/saririr^  a    coilsse    cap   arxd 
tovm,    an^  having  falsely   stated  tLat  he  ^as  a   ccllot;e   student 
ordered  at   a    ^lop   of  V  bcclcs  whicsh  trere-  not    stippliod  arid  book*- 
Bt-.'aps  which  v;ei'e   si:pp2.iodo      :-i;LD,    Defio    is   cT-'^iltyc      If  no 
words  had  boon  used  t^.e   cap  and  £,o-vTn  7;ould  h.  ve   been  evidence 
froii.  -Jhicl:   the   ju;.7    could  ir/fei*  that  i.e  ^7as  pretending,  to  be  a 
B'iudent    and  if   so   it  vas   a  ?,    P»   within    il.e   statute. 

Pretences  uay  be  uade   by  actions   as   well   as   by  voivlsa 

RLCxlIIA  V  I, ILLS,    p,    727,        Deft,   \';as   eiuployad  by  X  to   cut 
chaff  at   a   certain  price   per  fan,      Defto    took   soui3  fans   al- 
ready  cut'  ajid  added  t;.e;.i    to  his    o'./i-i,    then  derna^ided  pa.,T;Ajnt   far 
the  -iihole.      X  s-av;    tl-e    act    of   deft,    but  i^ade   the  payment',     ' 
Ei:LD,    that   defto   ■i7as   not    t;ailty   of   obtaining  money   by  F.   P. 
li    is  necessary    t..at    the   false   representation   is    the    laaediate 
iiiotive  Wiiia.   acts   on  the  Land-  of    tlie  pr-osecutor  ajid  induces 
hiij   to  pax-^   vith  his   property.      If  propec-ty   is   not   obtained  by 
the   false   pretense    it    is   an  atteiupt    only, 

:ifiGi:iA  V  BRYAN,    p.    729.         Def  t .    falsely   pretended   to   X  a 
pavTribrcker   that   certai.n  plated  spooris,   which  ho   offered  for  a 
pled£_e,   were   equal    : o  and  had  as  ..luch   silver   in  tl-?en  as   iilkinj^ 
ton's   arid  tliat  t.l.e    fo'uridation  was    of  best  material,      X  was 
thereb^y   induced    bo  advarice  money   in  exces-s   of  value   of  the 
spoons*      K£LD,    by    th-e  uiajority,    that   deft,   v;as   no;   £,uilty  of 
obbainin£^   floods  by  ?.    P.,    because    the   article  v/as    of  the   spe- 
cies tljit    it  was    rspregei-ited   to  be,    biit    tho   sta:, extents   of  tLie 
d-3ft.   wex*e  i..ere  uisrepresentatioris   as  to    ihe   quality.      It    is - 
like   an  exa^^^eration  as    to  quality  by   either  vendor   or  vendee 
to   so-ll    the    :^oods   for  i.iore   or   obtain  theLi   for  less  -'thai-i   tlieir 
value.      li   vas  FilLD,   b'y   dissent in^  judf^es   that    deft,'  v/as   guil- 
ty.     In  each  case    it    is   a    tesi  v:l,eLher   it   was   a  I",    P,    by  whidi 
property  wa's   cb:ained  ar«.l  whether  there  was  an   intent   to   cheat 
ar»d  defi-aud,      ""he   stateiuents    of   tl^   prisoner  ::ere  i.iattors  not 
Oi"   opiriion,    but    of   fact, 

iveryonoone   knows    ^hat   exh  _. -/a^^ant    ?:':ate.aents  will  be 
made    in  a   sale   arid  one   \fiio  does    it,    does    so   witl.out   any   idea 
of  beinj,,  dishonest,    but  merely   as'  a  trick    of  trade.      The  w 
qviestiori  for  us    is    -  did  ■t:.xe    Jefb.  ^ake    '^.g    statement    to  be 
relied  upon  arid  witl":   the    interit    to  deceive,      T::is   ques;ion- 
iViUS'i   be   ariswered  by    ihe   j"aiv  aiid  is    iiOt   a  matter  of  laiv ,  hence 
the   case   is  wront,ly  decided,      '^..ere    is   no  reasori,   Beale-says, 
w?.;    a   false   siate^ient  -as    to  realitv  ...ay  riot   be   to   obtain  b:'    - 
I".   P.    as  anything  else.      Cf  cou'-'^rt     -..e   Tact    tliat   statements 
were  -ade    in  tlie    course    of   trade  -/o^Cd  lead   ihem  to  view   such 
staie:.ier/-i;s  as  -iere  pviffi^-i^,  •.■/•itl.out    ri-f-.er   evidence   to   diow  the 
opposite, 

154 


i 


cCiS^INA   V    ^0S;7^   jj',    7^"^^        De^ic    gave   ;^    -lar-^pTe   oJT   tihefise    to 
>:  JUiCl   ''alsa!^.'/   r-ep-.--c gen-red  it   tcr  bo   taken  from  che'ese  \.'hic'h  had 
just  b^^eri  oponsl  and.  whlt-h   dafto    offered  for-  5-;a7.e,.      •■^h^^  re- 
prei^ontatiori  vas  os^.e   by   secrsteli"  'diarigfaig  the    r-axop-lob.-,   v.pon 
'vVhlch  X  tioted:  and  boug^.t'  tho    cheese c      ILKLD,    It   vr.&  obtalrxirss 
money  bi'   J:',,   Po      The   F,    P.^    of  a  ava-tter  c-f   fa-^t    0Oep?J,;i8.bl,'='.   by 
the-?;ense?.    i«  f'/hat    is    i.r/.d.ic»,tabli  e  : 

Thiu    oav'v'   is   not   oppcrsoii  to  Er-yan-R   O'ac.'ft,,    but   t>ie  pirin" 
cip-l-'j   Hn;'.  reav^onir-iT  v/ouXd  apply  to   that   ;;»-;©  3 

RJ^GilNA  V   RAGG,    p.,    739,         Def  t  c    off  o  red    :;o   gf^Xl  X  coaX 
"whifih  hy  aGserted   to  be  ;;.   eertair.'.  kird  .^nd  of  a   uertyj.?!  "A'ei.gl:^ 
Ooiil  was-:   so  arr.Hnged  in.  the   cart   as   to  appear  mor-s   thrin    It 
was  2nd  Z  pu.r'.'l;i,aF.6d  en  the    fjtaternentB   oi"   tho   defti..      TI-.s   ■scvrfi 
was   of'  a  dj.;?ferent  }jlnd  and  -yas   lees   in.  "SJoifch't    t<h-an  ^ks   jreps^e^ 
sftnted,      H>jLDj.    it  was   obtadrjing  money   binder  Fo    Pv 

REr;iNA  '-r  JMNISON,    p.    742,        Deft,    -epi^osenttjd  to  X  thi^t 
'he   ■sas   an  U2::rnarvi(-;d  iaaji.  and  pi^etenA^id  t.>ia.t  he  V3.s   about  to 
roari'-y  lior,,    indueejd  hsr-  to  give-  h.?lj:n  nionay  /ix-taiciing  to  U'SCi   it 
in  f"urni£ihing  a  house   fni'  thera,,      KSL  D..-  d&f t  j    is   guilityo 
Thare  was  a  varlze   .t'epresentaticn  of  faet   acof;i:.r.panie.d  by  3<5rv"ei^^ 
iaJ.se  pronlseso      A  faj-se   fact    by  means   of  which  money  is  ob»--> 
tain?':;-.'    33   sio''.fi<jient    to  sustain  an  indict-ment ^    bu-t   a  Xalse 
■  promi^te  by   it3e.lf   vvnuld  not    suf^tain  an   irifiintiDent., 

It    is   snoivgii   to   find  a   fa.Ise   representation  which  led  to 
th  e   t  ran  sa  y  t  i  o  r .>.  c 

OOMMOOTEA]jTH  v  DREWj    p.    744,        Deft,    opened  an  ac-eount 
with   a  banJ:   under  the   asBiomed  name    of  .Ari.a.ms;    sf ter-  a  mjmr.er'  af 
deposits  and  vithdi'awels  he  pi-esenterJ   2   (?her..b"R  ^-hr-n  h.'?  fc^.d.  no 
fiin.ds    on  dspord.  t   ajr'.d  the  checks  "5?^-r«   paid.N      hL.?.LDj    de.rti,,    ssas 
not   guilty   of   obtairing  money  by  F:,   Fc      'TYid  niSSiUmpt ion  of  ti^ 
false   r..a.xve  ac'jordirig  to   th®  piroot  had.  ix'    iivPluen:i-e   in  r^^i^ycrxsg 
tjie  money-t,      The   pretend.ing-to   open  a   regular  busi.ness   aesoxint 
being  accompajxlsd  by  no   false    repFei?Gint3.tio.n  had  Illcewise  no 
iiLt'luonce .    aYui  the   presentation   of  tiia    2.  che rikB   v?as  a  rasre  re- 
quest   to  p-ay   a.rul  not   a  F.    representation  that    thei-e  ti-erc  fiifids 
on  deposit  c, 

'Suppose   th^-5    ca.se   of  art   overdi'awn  check    given  to   a   third 
persono      The   giving  of  the   ahecvk    is   a  sto-texnent   tl-^.t   there  are 
(not  will  be)  funds   in  the  bank   to  mest    it  .      And  or.  this   view 
if  A  gave   out   after  bariking  hours   a   check    for  $2.00 c   when  he 
has    only  f-ioo/   in  the   bank   to  meet    it.,   he  would  be  liable o- 
Thf)   rule   ir.    that   if  at   the    tims   the    cheyk    is  ma«is   out,    the 
owner  had  no   intent   to   defraud- there    is    no   crime,,      But  this 
does  not    settle   the   question  as   to  what  'id   a  fairse   repr-eoantar- 
tionj    for-   it  n)a.kes    it   tvii^i   on  the'  intents      Beale   agree?   srith " 
thi?;    c^^^K   on   "i-Aze   ground  that   dsf t ,   was   a   oiustomar  o.f   tii«  b^aJCo 

155 


li    they  j:;av3  in^ii    o^.v  inciiey    it  nxas-r-    l:ava   beeyi  thjit    they    re'i.vsd 
upon  hie  '..redit..      It  ^Tra-.a   i-eqiiest   to  -^ay   -aa   usual   ami    'hf-> 
barJ^  pai'.U      Tho    .?l:xecK    di'l  not    imply   to   them  1>ha'..    ther^  w^i^^j  _ 
furids    in.  th&   ban.^  •,      V/heri  a   check    Ib   t.'J-*'^'^^   "f-    '^  thii'd  pe  I'sovj.  or 
in  f)3s;e    a   oheoA    oi   one    bank    is   presented    tc   anov-hei'-,    i^j'   m 
cace   a   o.  t ■..':■,- is   pi-esented  to   a  hr..r<.k   ivhoro   thes-e   arc-  no  funikf^ 
on  depooi^^    there   is  no    r-cXiaijC  3    en  thi.^   orodi-i'    o."  a   i^ustcjiioaro 

comic N^^SALTI-:  V    NORTC]^',    pc    7C0.        Deft,    fals.-ly   pret&aded 
to   prosecutor  that  he  had    the    day  beior-e   ^iven  a   five  doll'ir 
bill    I'n  payinent   for  2  dririkr. ,    but    that  X  did'  not    retur^n  air;.y    ' 
chanifje  •      rro'je-cutor  paid  thiji-   smo-ant'  demanded c      liE:/!)^    the   (.teftp 
Vif&s  not-    rai.ity\,      It  was   a  vrilfuJ,   false   aff  lrma.tion  mada   to -a 
party  who  had  ample  me  ran  s    of   k.nov/inr  v/ht^thei'  the  aTfirmatlon 
was   ti-Lie   ox-    f  aj..i:^e  o 

Th  Ir;    (3Hse    i, i    nob    iavT    oiitgide    ot?  Mo-f'Dv      The    idfta   o;f    tii-i:     ' 
seller  \ei:i;.;   oliiiifed    to  proLoot  hirnself   is  r;.et    f:ood  lair. 

Usually   Zi~:i  ne^^i  i^em^e'  of    bhe   defrauded   po.i-ty  io   overlooked; 
for   tliat    ir.    jjx*iaatei'ial, 

OOmiOTTOSALrri   V  'ffllTCOME,    p.    751,,        Defto    falsely  proten-^ 
ded  to   a   i;lej:-£.yma?i   tiat  he  vrara   pastor  at   a   certain  plice  a.i'wi.  • 
was    of   ^.rcat   need   of  money   since  he  had  been  robbed..      Ho  v/a's 
thiereupon  £,iven  money,,      HELD,    tlie   statute    includes    caseB  '^herQ 
money    is  par-ted  witi-i  as   a    charitable   d-oriation.      The   purporj-e^ 
for  which  money   is   given    i.s    inimaterial.      The   j,ose   o.?   an  expec- 
ted  return  amount-s   to  notliing..    it    is   the    givin^^  up   of  pi-operty 
tbx-T  t    i  c!    ijjipo  rt  a  nt  „ 

CC)I.IMn]srHa"^.ALTH    V   HA?J:IIIS,    Po    7'f>i3„         Deft,    falsely    represeja/- 
ted  to    tiie    city  of  Lynn  th-^t  h»  was    injured  by  -defect    in  th®    • 
street    and   5.howed  an   iri  lured  foot   axui  ari]<:le ;      The   city   was    - 
thereby   indiK^ed   to  have   a   judg.eraont    in  a   suit   brouf/ht  -for   :i.n" 
jury  by   daf t ,,    entered  agrainst   thG,tn  and  paiij.   the   amount ,,      H.&'LBs 
Deftc.    IS  not    guilty   sinv.'i   there    is'  no    Ie{;,a'l   i-rijurir  to    a  j;.^:cty- 
who  pays  whai;  ba    is   obliged   i.;o    pay.      The   Fr.   P.j   was    i.ise-i  to 
procure  -the    oorisent    c^'  the  city    that    jujge;iisnt    be   rendere-i   for 
the   dc-I't\-,    and  tiiig    jtidgemerit   was    ccnslusivo   evidsrice    that   time 
amount    Kas    owedo      It   was  hold  by   the  minority  that    it  was    ira-^* 
dictable   for   a  judgement    is    conclusive   evidc-jnoe    on.l7  as  to   tibe 
parties  -privy  thereto  and  wou.lii  not    concsern  th^   Coiianonwealchj- 
a   stranger-,,      The   jud£,enient   'A^as    only   a  raeanei    to  an  end  ami- it. 
would  be -a   question  for   t.-h'ft    jury  whether   thfr:^  l<'c   ?^  -"iVHt''e   -aii  i-Tir 
ducement   to   pay    the  money.; 

It    is   publifv   policy  that   'yhen  jud£-iraent  has    been  ^iv-^n  in 
a   (!ou.rt    ajxl   one    bfe'-'iom/iri    obliged  to   -pa^    it-   Ph.-ul-d  not.   be    iaJ-csn 
up    i'l  anothe:r   (jourto      In   other  T?ords    one    cannot   be   co.ns-id>«reci 
as   obcainine  money   by  F,    Po   when  he    ie  under  -obligation  to  pay 
by   a   decree   of  the    u^ourt^      Beale   thi.nks    it    ovight   to  be   coriBi" 
dered  that    aifSer  j'adeement   tliere  was   a   tacit    continuan.-io   of 
the   representat  ion„      On  general  gr-ounds    the  ininority  sas    .-r.oi^ 

15G 


terscl   it    iti   a   ^r;"!i.orai  pi*ij-...ciple   that  one   cannot    £0  behind   it c  • 

It    Hho'j:.'...d  iivajji   no  dilTorence   hovf    bh&  judgement    is   oblrq-.ined.^ 

the   aniount    ghoul/.-v  be    p.jidbe    wausp    it  is   (^ue  -by   tne    h':.d:y:c   ^®" 
cvee    o'r   the    csour-t  ^ 

SUr/iMARY.  Sect'ion  Ono <.        I'^ulse   Pi-etsno.-T,   deais    .;ith  pro 

perty,^  -5j.(f''.    iJOsaei'S  ion^      A-.;    in  laL'ceny   ther^  rnusfc  bo    ohei  n/;.itniiB 
f urar;.-,.  U      The   wGid   '"'obtain''  ru&ans   to  d«pj-iv9   owner -of  doxGinion 
Barrov/iri-  a  horse  by  F^,   ?.-/  is   not    obto-ining  and   so    tberre  rni'Su 
be    Gi*    Intent  "feo  'pans    litle.. 

Sectioi/.  Two-.      The   r.ubj';c;t  mat'ioi'   in   &his    Oi'iirte  wi^.-^t   be 
the    Banie   a.-^s   in.  lai^i;xtr\y.    that,    is-    as    i^i  R;C£;iny.   v  Robinson./  deft 
was   not   gtiilty   ivf    obtaining  O-c^,?.   b:'   Fo   P.        ■".Thenever  deft,, 
£-ets  possession  ■.d.'   goods    or  money    in  a  f rc.ucuj.Gnt   way  vhid-i  ]r:s 
has   a  loral   ri^ht  4-.  o ,  •  obt::^^   in-anothor  way,    there    13   no  Fo    P^^ 
'->  People  V  Thomas  r. 

It'  musf-.  be'  a  -preteiioe   as    to  an  exietinj^  Pact   an:?'.  >-;ot.   ? 
promir>e  J     'I'he  5^    P^   nruslt    be  niade   uso    of   to   obtain  t^ooda   '■•  P.ex 
V  Wakelinj-.,      The   i'',    P,   may   be   made   by   acts   or   si^/is.as  v/'ell   as 
by  -woixIb   ■-   Rex  v  Bai-nai'd,      A  falye   statement   of  reality  may   be 
a  Fo    P,    of   (juantityand  the    question  is   ror    the    ^iinr    to    dBcidffi 
whethier  deft,  iiiade   a   statement   vi  th   intent    to   deceive,.      P.ex  v 
Bryan,-         We  must   distinguish   betv.reen   sucn    statements    and    "puf- 
fing"  vmich  by  the   babits   nnd   custouiS   of  -,.an]-ind    is   aliowa.d,    • 
If   one   false   repreyent^.tioTji    is    fo.und  even   thotigli  ascoh'ipa.niif;d ' 
by  a  fa-lse    promis'e.,;,    it.    is   suffisient    to   sustain  an   indie tmaffit, 
RegiJia   v   Jen}ij.sf>n.,  •  In  zme    check   cases   tj.e  re    is   a   diffi'juitj 
in  fi.miri.£-    the   F,.   P,    and   so    it  has    generally   been  he3d   that   it 
tuiTis    on  the    question  of'   intSntt 

The  negligence   of  t.hf2    (.iefraudcil  part-y   i-s    overlooked.;      Tne  Mass 
case  whifh   d.«oided.  that    it   was    i-ict   F.    P..   w.lien   \  pretended  B 
had  not    given  him   the    right    change,    is    nou   hcJd   tc  be   law    in 
0  the  1"   i  \xx-  i  s d i  c  t  i oris  ? 

The -pvarpi'se   foi*  w'hicAz  money    is    obtained   is    i  aimaoerial   •••   Oom--^ 
fAOnwealth   v  W.hitcombc      But    when  money    is    obtained,  by   a   falsely 
obtained   .jndgerji3'.,et    J. t    is   helctj    cj    the    gi-ou-rids    of  public   poli<3^ 
that   oYni    should  not    go   beVilad   it,.      The  pretence   must    not  be 
too    rrnxotej,    as   where  -a   professional    sv/invier   obtains   ?.   ticket 
to   an  ajiiatoui'  ^contest. 

FINIS, 


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